author:
TORBERT, Chief Justice. FAULKNER, Justice
      JONES and SHORES, Justices

text:
    Repsie Rhea BOONE v. Dr. M. M. MULLENDORE.
    80-423.
    Supreme Court of Alabama.
    June 30, 1982.

      M. Clay Alspaugh of Hogan, Smith & Alspaugh, Birmingham, for appellant.
    William M. Bouldin of Guin, Bouldin, Porch & Alexander, Russellville, for appel-lee.
    John T. Mooresmith, Mobile, for amicus curiae Medical Ass’n of the State of Ala.
   TORBERT, Chief Justice.

This is a medical malpractice case wherein the trial court granted summary judgment in favor of the defendant on the ground that plaintiff, Repsie Rhea Boone, is limited in her recovery of damages to the amount of the settlement with the hospital measured in terms of her actual medical expenses incurred in giving birth. Mrs. Boone appeals and we reverse.

In 1976, Repsie Rhea Boone visited. Dr. M. M. Mullendore, complaining of cramps and bloating in her abdomen. On July 6, 1976, Mrs. Boone was admitted to Colbert County Hospital for exploratory surgery. During the surgery, Dr. Mullendore discovered and removed cysts in Mrs. Boone’s Fallopian tubes and ovaries. After the surgery, Dr. Mullendore dictated an operative summary and procedure that stated that “the left and right [Fallopian] tubes were removed.” Additionally, the plaintiff also alleges that Dr. Mullendore informed her that her Fallopian tubes had been removed and that she was sterile. As a result of this representation, Mrs. Boone did not use contraceptive methods. She became pregnant, however, and in April 1978 delivered a healthy child.

The Boones brought suit against Colbert County Hospital and Dr. Mullendore for negligently representing that her Fallopian tubes had been removed and that she was sterile, or, in the alternative, for negligent failure to remove the Fallopian tubes. Mrs. Boone sought compensatory damages for medical expenses and costs reasonably incurred in the rearing of the child. At the pretrial hearing, Mr. Boone withdrew as a party plaintiff and following the pre-trial hearing, Mrs. Boone reached a pro tanto settlement with the hospital for $1,500.00, which was conceded to be the amount of her medical expenses. Subsequently, Dr. Mullendore moved for, and the trial court granted, a summary judgment on the ground that, as a matter of law, Mrs. Boone could not recover more than the settlement amount for actual medical expenses incurred in giving birth. This appeal followed.

The issue on appeal is what damages may be recovered by a parent as a result of the negligent treatment, or the negligent misrepresentation of a doctor that the parent is incapable of having children. For the reasons set forth below, we hold that the trial court erred in limiting damages to out-of-pocket medical expenses.

Mrs. Boone contends that a health care provider should be subject to liability in damages for negligence that results in the-wrongful birth of a child. At this point, it will be helpful to make distinctions in the terminology used by the parties. A claim for “wrongful birth” is one brought against a physician who “failed to inform parents of the increased possibility that the mother would give birth to a child suffering from birth defects .. . [thereby providing] an informed decision about whether to have a child.” Phillips v. United States, 508 F.Supp. 544, 545 n.1 (D.S.C.1981) (quoting Comment, 8 Hofstra L.Rev. 257, 257-58 (1979)). A claim for “wrongful life” is one by which a child seeks recovery for being born with infirmities. See, Elliot v. Brown, 361 So.2d 546 (Ala.1978), wherein this Court refused to recognize a cause of action for “wrongful life.” This case is, instead, more suited to a traditional medical malpractice, negligence action. In the court below, the plaintiff alleged that Dr. Mullendore was negligent in failing to remove her Fallopian tubes or, in the alternative, was negligent in representing that her Fallopian tubes had been removed and that she was sterile. Some jurisdictions have defined actions of this type as an action for “wrongful pregnancy.”

The present action, therefore, is focused upon the issue of whether Dr. Mullendore negligently performed surgery upon Mrs. Boone and made misrepresentations to her as to her future capability to conceive a child, thus causing her to rely upon such statements and to become pregnant. A number of courts have been faced with this issue. See, Phillips v. United States, 508 F.Supp. 544 (D.S.C.1981); Custodio v. Bauer, 251 Cal.App.2d 303, 59 Cal.Rptr. 463 (1967); Coleman v. Garrison, 349 A.2d 8 (Del.1975); Wilczynski v. Goodman, 73 Ill. App.3d 51, 29 Ill.Dec. 216, 391 N.E.2d 479 (1979); Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511 (1971); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn.1977); Betancourt v. Gaylor, 136 N.J.Super. 69, 344 A.2d 336 (1965); Speck v. Finegold, 268 Pa.Super. 342, 408 A.2d 496 (1979); Terrell v. Garcia, 496 S.W.2d 124 (Tex.Civ.App.1973), cert. denied, 415 U.S. 927, 94 S.Ct. 1434, 39 L.Ed.2d 484 (1974); Rieck v. Medical Protective Co., 64 Wis.2d 514, 219 N.W.2d 242 (1974).

In Alabama, in order to state a cause of action for negligence, the plaintiff must show that the defendant has a legal duty, that the defendant has breached that duty, that the defendant’s breach proximately caused an injury, and that damages have resulted to the plaintiff. Quillen v. Quillen, 388 So.2d 985 (Ala.1980). It is also the law in Alabama that a physician owes a duty to exercise reasonable care in the treatment of his or her patients. Code 1975, § 6-5-484(a). Therefore, if proven, the negligent misrepresentation of the nature of the surgery and/or such negligent performance of that surgery as would wrongfully cause a patient to become pregnant would be a breach of that duty.

Since the trial court granted the defendant’s motion for summary judgment, we must initially state that the party moving for summary judgment must be entitled to a judgment as a matter of law, Fountain v. Phillips, 404 So.2d 614 (Ala.1981); Butler v. Michigan Mutual Insurance Co., 402 So.2d 949 (Ala.1981), with all reasonable inferences concerning issues of material fact to be drawn in favor of the non-moving party. Papastefan v. B & L Construction Co., 356 So.2d 158 (Ala.1978). Assuming, without deciding, that the first three elements for a cause of action for negligence are met, the issue becomes whether the trial court erred in holding that Mrs. Boone could not recover more than the $1,500.00 in medical expenses paid to her by the hospital. We hold that the trial court erred in granting Dr. Mullendore’s motion for summary judgment on the issue of damages.

Among the difficult issues in an action of this type is the measure of damages to be ascertained. Several theories have been proposed by other courts and by the parties to this action. Dr. Mullendore urges this Court to find that, as a matter of law, the benefits accruing to the parents of a healthy child outweigh the economic and emotional detriment of having an unwanted, unanticipated child. See, e.g., Terrell v. Garcia, 496 S.W.2d 124 (Tex.Civ.App.1973), cert. denied, 415 U.S. 927, 94 S.Ct. 1434, 39 L.Ed.2d 484 (1974); Rieck v. Medical Protective Co., 64 Wis.2d 514, 219 N.W.2d 242 (1974). Under this theory the holding of the trial court would have to be affirmed.

In California, it has been held that all costs and expenses of rearing such a child, and also emotional distress, are recoverable. Custodio v. Bauer, 251 Cal.App.2d 303, 59 Cal.Rptr. 463 (1967). A third view of damages is that the parents may recover only damages for pregnancy-related costs and expenses, and damages for pain and suffering. Wilbur v. Kerr, Ark., 628 S.W.2d 568 (1982); Coleman v. Garrison, 349 A.2d 8 (Del.1975).

The fourth view of damages, which is urged by the appellant, is known as the “benefit” rule of damages. Under the “benefit” rule, parents may recover for damages proximately caused by the physician’s negligence, including pregnancy-related expenses and the economic damages to the family resulting from the birth and rearing of the additional child. These damages may be offset, however, by the benefits accruing to the family as a result of the child’s birth. Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn.1977). See also, Restatement (Second) of Torts, § 920 (1977). Mrs. Boone contends that the losses and benefits resulting from a wrongful pregnancy are relatively tangible and are measurable factors for the jury to consider separately. We cannot agree.

Today, we adopt as the measure of damages in an action of this type essentially the standard set out in Coleman v. Garrison, 327 A.2d 757 (Del.Super.Ct.1974), aff’d, 349 A.2d 8 (Del.1975). This Court believes that damages should be limited to the actual expenses and the injury attending the unexpected pregnancy. Thus, the damages recoverable would include: (1) The physical pain and suffering, and mental anguish of the mother as a result of her pregnancy; (2) the loss to the husband of the comfort, companionship, services, and consortium of the wife during her pregnancy and immediately after the birth; and (3) the medical expenses incurred by the parents as a result of the pregnancy. Any additional damages would tend to be extremely speculative in nature, and awarding such damages could have a significant impact on the stability of the family unit and the subject child.

As indicated, numerous courts have addressed these issues in recent years and have come to various conclusions. A large number, however, have held that for public policy and other reasons the expenses of rearing a child to the age of majority should be denied. Wilbur v. Kerr, Ark., 628 S.W.2d 568 (1982); Coleman v. Garrison, 327 A.2d 757 (Del.Super.Ct.1974), aff’d, 349 A.2d 8 (Del.1975); Wilczynski v. Goodman, 73 Ill.App.3d 51, 29 Ill.Dec. 216, 391 N.E.2d 479 (1979); Stewart v. Long Island College Hospital, 35 A.D.2d 531, 313 N.Y.S.2d 502 (1970), aff’d, 30 N.Y.2d 695, 283 N.E.2d 616, 332 N.Y.S.2d 640 (1972); Hays v. Hall, 477 S.W.2d 402 (Tex.Civ.App.1972); Rieck v. Medical Protective Co., 64 Wis.2d 514, 219 N.W.2d 242 (1974). The cornerstone of this denial is the idea that a normal healthy life should not be the basis for a compensable wrong. “The existence of a normal, healthy life is an esteemed right under our laws, rather than a compensable wrong.” Wilczynski v. Goodman, 29 Ill.Dec. at 224, 391 N.E.2d at 487. As one court has stated:

“To permit the parents to keep their child and shift the entire cost of its upbringing to a physician who failed to determine or inform them of the fact of pregnancy would be to create a new category of surrogate parentr Every child’s smile, every bond of love and affection, every reason for parental pride in a child’s achievements, every contribution by the child to the welfare and well-being of the family and parents, is to remain with the mother and father. For the most part, these are intangible benefits, but they are nonetheless real.... We hold that such result would be wholly out of proportion to the culpability involved, and that the allowance of recovery would place too unreasonable a burden upon physicians, under the facts and circumstances here alleged.”

Rieck v. Medical Protective Co., 219 N.W.2d at 244-45.

The birth of a healthy child, and the joy and pride in rearing that child, are benefits on which no price tag can be placed. This joy far outweighs any economic loss that might be suffered by the parents. Wilbur v. Kerr, Ark., 628 S.W.2d 568 (1982).

“A child is born — how can it be said within the ambit of legal predictability that the monetary cost of that life is worth more than its value? We recognize that a few courts, approaching the problem in clinical terms, have applied a ‘balancing test’ which, presumably, permits a jury to say that a life has been weighed and found wanting and thus the parents have been ‘damaged’. See 27 A.L.R.3d Annot.: 906 and the discussion of the cases in Terrell v. Garcia, Tex.Civ.App., 496 S.W.2d 124 (1973). We respect the efforts of other Courts to provide a remedy under the circumstances but it seems to us that that kind of judgment, if appropriate at all in an American Court of law, might be applied at the end of a life, after it has been lived and when the facts can be identified. But, in our view, any attempt to apply it at birth can only be an exercise in prophecy, an undertaking not within the speciality of our fact-finders.”

Coleman v. Garrison, 349 A.2d 8 (Del.1975). In Terrell v. Garcia, 496 S.W.2d 124 (Tex. Civ.App.1973), cert. denied, 415 U.S. 927, 94 S.Ct. 1434, 39 L.Ed.2d 484 (1974), the Texas Court of Civil Appeals succinctly spelled out the inherent problems of the “benefits rule” advocated by the plaintiff. That court stated:

“Irrespective of the public policy view, adoption of the ‘benefits rule’ as suggested by Troppi, would present unsurmountable problems of proof under our present standards for proof of damages. Prodf could undoubtedly be offered regarding the cost of care and maintenance for a hypothetical child, although the standard of living and extent of education to be provided such child would undoubtedly require considerable conjecture and speculation by the trier of facts.
“.. . Nevertheless, as recognized in Hays and Troppi, the satisfaction, joy and companionship which normal parents have in rearing a child make such economic loss worthwhile. These intangible benefits, while impossible to value in dollars and cents are undoubtedly the things that make life worthwhile. Who can place a price tag on a child’s smile or the parental pride in a child’s achievement? Even if we consider only the economic point of view, a child is some security for the parents’ old age. Rather than attempt to value these intangible benefits, our courts have simply determined that public sentiment recognizes that these benefits to the parents outweigh their economic loss in rearing and educating a healthy, normal child.”

496 S.W.2d at 127-28. To allow damages under the “benefit rule” as urged by Mrs. Boone, would only invite speculative and ethically questionable assessments of damages that in the long run would cause a great emotional impact on the child, its siblings, and the parents.

Another problem is the possible harm that can be caused to the unwanted child who will one day learn that he not only was not wanted by his or her parents, but was reared by funds supplied by another person. Some authors have referred to such a child as an “emotional bastard” in a realistic, but harsh, attempt to describe the stigma that will attach to him once he learns the true circumstances of his upbringing. 50 Cin.L. Rev. 65 (1981); Wilbur v. Kerr, Ark., 628 S.W.2d 568 (1982). Mrs. Boone, however, contends that such damages are not for the child, but are, as stated by the Illinois Court of Appeals in Doerr v. Villate, 74 Ill.App.2d 332, 220 N.E.2d 767 (Ill.Ct.App.1966), “to replenish the family exchequer so that a new arrival will not deprive other members of the family of what was planned as their just share of family income.” We cannot agree. If the “benefit rule” is adopted, it will place the parent in the win-lose situation that if they admit that the child is a welcome addition and that they will love the child and rear it properly, they may get no damages at all. It would thus be to their advantage, at least monetarily so, to deny any affection for the child and to emphasize all of the economic problems the child will cause, thus increasing damages and the possibility of emotional trauma in the child at the time he or she learns of the earlier court proceedings.

This dilemma leads to several more problems in the assessment of damages. First, in Alabama one seeking to hold another liable for damages is required to use reasonable efforts to avoid or mitigate his or her damages. Bates v. General Steel Tank Co., 36 Ala.App. 261, 55 So.2d 213, cert. dismissed, 256 Ala. 466, 55 So.2d 218 (1951). Yet courts recognizing this cause of action have rejected the argument that parents should choose among the various methods of mitigation — adoption, abortion, etc. — seeing the moral issues begin to make inroads into an already emotional and speculative process of determining damages. The issue is one “which meddles with the concept of life and the stability of the family unit.” Wilbur v. Kerr, 628 S.W.2d at 571.

Another problem arises in regard to the damages that may be awarded — -namely, what to do with the money recovered. If damages are awarded for the care and maintenance of the child, should the money go directly to the family to use as the parents see fit, should the money be placed in a special trust fund for the child, or should a guardian ad litem be appointed for the benefit of the child to insure that the money recovered actually goes to the rearing of the child?

As stated by the Supreme Court of Arkansas in Wilbur v. Kerr:

“It is a question which meddles with the concept of life and the stability of the family unit. Litigation cannot answer every question; every question cannot be answered in terms of dollars and cents. We are also convinced that the damage to the child will be significant; that being an unwanted or ‘emotional bastard,’ who will some day learn that its parents did not want it and, i« fact, went to court to force someone else to pay for its raising, will be harmful to that child. It will undermine society’s need for a strong and healthy family relationship. We have not become so sophisticated a society to dismiss that emotional trauma as nonsense.”

628 S.W.2d at 571.

We must emphasize that our holding is in the restricted context of a healthy, though unplanned and unexpected, child. Nothing in this opinion should be construed as addressing, or commenting upon, the measure of damages attendant with a right of action, if any, in favor of the parents of a child, in an action of this type, when the child is born and afflicted with predetermined or readily foreseeable genetic or hereditary defects.

In conclusion, this Court holds that there is no viable reason for exempting a physician from liability when his negligence proximately and wrongfully causes a patient to become pregnant. Because the issues of negligence and proximate cause are generally questions of fact for the jury, and because we hold that the trial court erred in limiting the amount of damages recoverable to the out of pocket expenses of delivering, the holding of the trial court is reversed and the cause remanded. If, at trial, liability is established, the damages recoverable by the plaintiffs include: (1) compensation for the physical pain and suffering, and mental anguish of the mother as a result of the pregnancy; (2) the loss to the husband of the comfort, companionship, services, and consortium of the wife during her pregnancy and immediately after the birth; and (3) the medical expenses incurred as a result of the pregnancy.

REVERSED AND REMANDED.

MADDOX, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

FAULKNER, JONES and SHORES, JJ., concur specially.

Though Justices SHORES and BEATTY did not sit during oral argument, tapes of oral argument and the briefs of the parties have been made available and have been studied carefully by them.

FAULKNER, Justice

(concurring specialty).

My difference with the majority is simply that I would hold that damages here should be assessed under the “benefit” rule.

The issue presented in the present appeal is whether this Court will recognize an action for “wrongful pregnancy” and award full and complete damages. The action for wrongful pregnancy is “generally brought by the parents of a healthy, but unwanted, child[,] against a pharmacist or pharmaceutical manufacturer for negligently filling a contraceptive prescription, or against a physician for negligently performing a sterilization procedure or abortion.” Phillips v. United States, 508 F.Supp. 544, 545 n. 1 (D.S.C.1981). See Robertson, Civil Liability Arising from “Wrongful Birth” Following an Unsuccessful Sterilization Operation, 4 Am. J.L. & Med. 131 (1978); Comment, Pregnancy After Sterilization: Causes of Action for Parent and Child, 12 J. Fam. L. 635 (1972). The majority of jurisdictions addressing the wrongful pregnancy issue have recognized that parents are entitled to bring such a claim. Phillips v. United States, 508 F.Supp. at 549. Today, this Court refuses to follow the majority rule, and fails to permit a doctor to be held fully responsible for his or her negligence. I would follow the majority rule, and permit the parents in the present case to recover complete damages for wrongful pregnancy.

The majority opinion raises two major arguments against granting full damages for wrongful pregnancy. First, the majority asserts that damages for wrongful pregnancy are unascertainable. Second, a more emotionally charged argument is asserted that public policy recognizes the value of human life and this value precludes any action for wrongful pregnancy.

The resolution of the question of a physician’s liability for wrongful pregnancy, however, does not require “intrusion into the domain of moral philosophy.” Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511, 513 (1971). Public policy arguments in such cases often serve as a smokescreen hiding the true issue. The ultimate issue is whether a physician is liable for negligently failing to perform an operation or for negligently misrepresenting the nature of an operation.

Dr. Mullendore asserts that recovery for wrongful pregnancy is against public policy. The thrust of this argument is that the “sanctity of life precludes a cognizable action in law.” Speck v. Finegold, 268 Pa.Super. at 354, 408 A.2d at 503 (1979). It is urged that life, as a matter of law, cannot be damaging to either a child or a parent. Many of the early cases, implicitly accepted by the majority opinion, relied on public sentiment against abortion and sterilization and the sentiment in favor of procreation. See Glietman v. Cosgrove, 49 N.J. 22, 227 A.2d 687 (1967). “The great end of matrimony is not the comfort and convenience of the immediate parties, ... but the procreation of progeny.” Shaheen v. Knight, 6 Lyc. 19, 23, 11 Pa.D. & C.2d 41, 45 (1957).

The majority asserts that “a normal healthy life should not be the basis of a compensable wrong.” I agree. Nevertheless, the purpose of an action for wrongful pregnancy is not to recover for the life of the child, but the “diminution in the family wealth that necessarily resulted in a hardship to the other family members.” Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn.1977).

The majority also contends that a child whose parents recover damages for wrongful pregnancy will be an “emotional bastard.” First it should be noted that the majority permits some, but not all, damages suffered for wrongful pregnancy. • Will a child feel any less an “emotional bastard” if its parents recover the damages permitted by the majority rather than full and complete damages? Furthermore, it is difficult to believe that a child will feel like an “emotional bastard” in either case. How many members of society who were born when birth control was unacceptable, learned that their births were unexpected and sensed their births had undesired effects on the family treasury? If this Court were to grant the full measure of damages for “wrongful pregnancy” the economic pressures of raising an unexpected child would be taken off the parents, permitting them to concentrate on giving the child the love and care he or she needs.

Furthermore, the Supreme Court of the United States recognized that the right to privacy protects a husband and wife from unwarranted intrusions into the fundamental decisions of a family concerning contraception and abortion, in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). In light of such Supreme Court decisions, it cannot be maintained that family planning and contraception are against public policy.

“To say that for reasons of public policy, contraceptive failure can result in no damage as a matter of law ignores the fact that tens of millions of persons use contraceptives daily to avoid the very result which the defendant would have us say is always a benefit, never a detriment.”

Troppi v. Scarf, 31 Mich.App. at 253, 187 N.W.2d at 517.

The majority asserts that recognizing full damages for wrongful pregnancy “meddles with the concept of life and the stability of the family unit.” I believe that the failure of this Court to recognize this cause of action intrudes on the constitutionally, protected right of the Boones to determine the size of their family. The Court in Speck v. Finegold, paraphrasing Custodio v. Bauer, 251 Cal.App.2d 303, 59 Cal.Rptr. 463 (1967), noted: “the birth of an [unanticipated] child may be less than a blessing in an economically deprived family, particularly if the sterilization had been intended to prevent the birth of a physically defective or mentally retarded infant.” 268 Pa.Super. at 360, 408 A.2d at 506.

Certain public policies favor granting complete damages for wrongful pregnancy. Society has an interest in seeing that operations are properly performed and that patients are properly advised. The recognition of a cause of action encourages physicians to accurately perform these tasks by penalizing those physicians who fail to observe customary standards of medical practice. See Phillips v. United States, 508 F.Supp. at 551.

Perhaps the most difficult issue in wrongful pregnancy actions is the ascertainment of damages. Several theories of damages have been proposed by other courts. The doctor asks this Court to find, that as a matter of law, the benefits accruing to the parents of a healthy child outweigh the economic and emotional detriment of having an unwanted, unanticipated child. See Terrell v. Garcia, 496 S.W.2d 124 (Tex.Civ. App.1973), cert. denied, 415 U.S. 927, 94 S.Ct. 1434, 39 L.Ed.2d 484 (1974); Rieck v. Medical Protective Co., 64 Wis.2d 514, 219 N.W.2d 242 (1974). Other jurisdictions take the approach that all costs and expenses of raising such a child, including emotional distress and the actual cost of having an infant, are recoverable. See, e.g., Custodio v. Bauer, 251 Cal.App.2d 303, 59 Cal.Rptr. 463 (1967). A third view of damages, taken by the majority of this Court, is that the parents may recover only damages for pregnancy-related costs and expenses, and damages for pain and suffering. Coleman v. Garrison, 327 A.2d 757 (Del.Super.Ct.), aff’d, 349 A.2d 8 (Del.1974). Finally, the fourth view of damages, which I would adopt, is the so called “benefit” rule of damages.

Under the “benefit” rule, parents may recover for damages proximately caused by the physician’s negligence, including pregnancy-related expenses and the economic damages to the family of the birth and rearing of an additional child. These damages may be offset, however, by the benefits accruing to the family on the birth of the child. Section 920 of the Restatement (Second) of Torts (1979), states:

“Where the defendant’s tortious conduct has caused harm to the plaintiff or to his property and in so doing has conferred upon the plaintiff a special benefit to the interest which was harmed, the value of the benefit conferred is considered in mitigation of damages, where this is equitable. [Emphasis added.]”

This rule permits the factfinder flexibility in determining the extent of benefits accruing to the parents in different circumstances. As the court in Troppi v. Scarf, 31 Mich.App. at 256-57, 187 N.W.2d at 518-19, points out, the trier of fact must have the power to evaluate the benefit according to all the facts and circumstances in a particular case. “Family size, family income, age of the parents, and marital status are some, but not all of the factors” which the trier of fact may consider in awarding damages. Id.

“Consider, for example, the case of the unwed college student who becomes pregnant due to a pharmacist’s failure to properly fill her prescription for oral contraceptives. Is it not likely that she has suffered far greater damage than the young newlywed who, although her pregnancy arose from the same sort of negligence, had planned the use of contraceptives only temporarily, say, while she and her husband took an extended honeymoon trip? Without the benefits rule, both plaintiffs would be entitled to recover substantially the same damages.
“Application of the benefits rule permits a trier of fact to find that the birth of a child has materially benefited the newly wed couple, notwithstanding the inconvenience of an interrupted honeymoon, and to reduce the net damage award accordingly. Presumably a trier of fact would find that the ‘family interests’ of the unmarried coed has [sic] been enhanced very little.”

The major difficulty in applying the “benefit” rule is that comment 6 to Section 920 of the Restatement indicates that benefits to one type of interest may not offset damages to another type of interest. Nevertheless, the benefit rule is rooted in the equitable principle of unjust enrichment. See Sherlock v. Stillwater Clinic, 260 N.W.2d at 176. In a cause of action for “wrongful pregnancy,” it would be unfair and would result in unjust enrichment to strictly apply the “same interest” limitation. Since the economic burden and emotional distress of rearing an unexpected child are inextricably related to each other, I would hold that the reasonable costs of rearing a child may be offset by the value of the economic and emotional benefits conferred on the parents by a child. See Troppi v. Scarf, 31 Mich.App. at 258, 187 N.W.2d at 518. Accord, Sherlock v. Stillwater Clinic, 260 N.W.2d at 176. In the case of a normal, healthy child, these expenses usually do not extend beyond the age of majority when the parents are no longer under an obligation of support. Id. These damages may be offset by the value of the child’s aid, comfort and society. Id.

The majority also asserts that such a measure of damages is unascertainable and entirely speculative. Nonetheless, the pregnancy-related expenses, medical and hospital bills, lost wages and so forth are readily ascertainable. Likewise, the cost of rearing of a child is an expense routinely computed by juries. Mrs. Boone’s damages for pain and suffering are ascertainable, as this court recently recognized in Taylor v. Baptist Medical Center, 400 So.2d 369 (Ala.1981). The only uncertainty arises from the application of the “benefits” rule. While the exact dollar value of the benefits accruing to the parents is difficult to determine, it is enough that the plaintiff shows the extent of damages as a matter of reasonable and justifiable inference. Story Parchment Co. v. Paterson Parchment Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544 (1931); American Life Insurance Co. v. Shell, 265 Ala. 306, 90 So.2d 719 (1956). The rule in Alabama is that when damages are not capable of being precisely measured, the amount of damages to be granted rests largely within the discretion of the jury. Summerlin v. Robinson, 42 Ala.App. 116, 154 So.2d 685 (1963). The most fundamental principle of tort law is that a party should recover for injuries caused by the wrongdoing of others. A party who is wronged should have an opportunity to present to the jury the question of what are reasonable and proper damages. This Court and courts of other jurisdictions have permitted the question of damages to be submitted to a jury in analogous situations. See, e.g., Smith v. Richardson, 277 Ala. 389, 171 So.2d 96 (1965) (recovery of parents for permanently injured child); Sellnow v. Fahey, 305 Minn. 375, 233 N.W.2d 563 (1975) (recovery for wrongful death). Juries have been able to comprehend and determine the amount of damages in similar situations, and are capable of determining fair and reasonable damages in an action for wrongful pregnancy.

An action for wrongful pregnancy, in which damages are measurable, may be distinguished from an action for “wrongful life,” in which damages are said to be incalculable. It should be recalled that in an action for wrongful life, an action is brought on behalf of a child for negligently permitting the child to be born. See Elliott v. Brown, 361 So.2d 546 (Ala.1978). Several courts have denied actions for wrongful life, based on the rationale that we cannot measure “the value of life with impairments against the nonexistence of life itself.” Id. at 547 (quoting Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 687 (1967)); Dumer v. St. Michael’s Hospital, 69 Wis.2d 766, 233 N.W.2d 372 (1975). Justice Almon, speaking for this Court, has noted that there is no legal right not to be born. Elliott v. Brown, 361 So.2d at 548. Nevertheless, several courts which have refused to recognize an action for wrongful life have recognized an action for wrongful pregnancy. See Phillips v. United States, 508 F.Supp. 544 (D.S.C.1981); Phillips v. United States, 508 F.Supp. 537 (D.S.C.1980); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn.1977); Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (N.J.1979); Speck v. Finegold, 268 Pa.Super. 342, 408 A.2d 496 (1979). These cases distinguish wrongful life actions in two ways. First, the courts state that whether it is better to be born with defects, or not at all, is beyond our current ability to understand or calculate. Second, and more important, is that a cause of action is not cognizable at law for the right not to be born. These courts have permitted recovery for wrongful pregnancy. A parent has the right not to have a child. Thus, a legal right has been damaged. Furthermore, damages for rearing a child are similar to damages already committed to the power and domain of the jury.

The appellee also contends that Mrs. Boone may not recover for wrongful pregnancy because she failed to mitigate damages by aborting the child or giving it up for adoption. The Michigan appellate court addressed this question in Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511 (1971). The court eloquently stated this conclusion:

“However, to impose such a duty upon the injured plaintiff is to ignore the very real difference which our law recognizes between the avoidance of conception and the disposition of the human organism after conception.... At the moment of conception, an entirely different set of legal obligations is imposed upon the parents. A living child almost universally gives rise to emotional and spiritual bonds which few parents can bring themselves to break.
“Once a child is born he obviously should be treated with love regardless of whether he was wanted when he was conceived. Many, perhaps most, persons living today are conceptional accidents in the sense that their parents did not desire that a child result from the particular intercourse in which the person was conceived. Nevertheless, when the child is born, most parents accept him with love. That the plaintiffs accepted their eighth child does not change the fact that the birth of another child, seven years younger than the youngest of their previously born children, unbalanced their life style and was not desired by them.”

JONES and SHORES, Justices

(Concurring specially).

We are in complete agreement with the majority opinion, both as to the issue of liability and as to the measure of damages recoverable in such cases. We concur specially in order to amplify the rationale for rejection of the “benefit” rule and to clarify the mental anguish element set forth in the opinion as a portion of item 1 of the recoverable elements of damages.

While we agree that Plaintiff has suffered damages beyond the medical expenses incurred in the prenatal care and birth of her child, we further agree that legal damages may not be extended to cover the economic burden of rearing the child to the age of majority.

To adopt such a measure of damages would reduce the value of the parent/child relationship to a mathematical formula, subject to being diminished only by incalculable future events. But, more than this, it would equate the right of the mother to elect, in the first instance, not to conceive with a presupposed subsequent attitude of “not wanting” the child born of her “wrongful pregnancy.” A woman’s personal right to exercise the option not to become pregnant does not necessarily mean that a child conceived as a result of the breach of that initial right is an “unwanted” child. To the contrary, it is more accurately an “unexpected” or “unanticipated” child.

Indeed, it is the difference between these two concepts that constitutes the premise upon which the law must formulate its measure of damages. Inherent in the mother’s decision to carry the child to full term — a right not inconsistent with her initial decision not to conceive — is her decision to rear the child. Because the decision to bear the child is not economically motivated, the damages for rearing the child cannot be economically measured.

Instead, the law must relate her damages to the reality of her injury. If Mrs. Boone did, in fact, conceive a child as a result of Dr. Mullendore’s negligence, as alleged, a legal right has been violated and she has suffered an injury, in that she relied on the doctor’s representations that she was sterile and, in doing so, did not exercise her right to elect some other form of contraception. However, the law should not assume, nor does public policy permit the assumption, that her injury consists in giving birth to an “unwanted” child. For the tort of negligently interfering with her right not to become pregnant she is entitled to compensation, but only to the extent of her resultant injuries, one element of which is the mental anguish which flows directly from the loss of such right. The normal causation/resultant injury rationale of tort law, however, is not applicable to this situation. To effect a legal rule that fosters the “unwanted child” concept by permitting an award of damages based upon the costs of the child’s maintenance and support would impede, rather than enhance, the natural familial relationship.

On the other hand, the law should recognize that an alleged wrong, if legally established, results in denial of Plaintiff’s lawful right to exercise the option not to become pregnant. The wrong is directly and exclusively related to her personal right not to become pregnant. In reliance on the Defendant doctor’s representation, she says, she proceeded on the assumption that her choice not to become pregnant had been assured, and thus did not exercise other methods of contraception.

Consequently, assuming liability as alleged, Mrs. Boone is entitled to recover, if proved, those elements of damages enumerated in the Court’s opinion, including any mental anguish suffered by her for the violation of her personal right not to conceive a child.

      . While we differ materially with the measure of damages formulated therein, see Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511 (1971), for an excellent discussion of the distinction, which the law recognizes, between avoidance of conception and the disposition of the human organism after conception.


source: Caselaw Access Project

author: PER CURIAM. JONES, Justice TORBERT, Chief Justice

license: Public Domain

text:
    Gregory Lee McGEHEE v. Louise Shaw HARRIS.
    80-513.
    Supreme Court of Alabama.
    June 30, 1982.
    Stephen D. Heninger of Hare, Wynn, Ne-well & Newton, Birmingham, for appellant.
    Herbert W. Peterson of Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for appellee.
   PER CURIAM.

Gregory Lee McGehee (plaintiff) brought action against Louise Shaw Harris (defendant) for injuries he sustained as the result of a collision between his motorcycle and her automobile. The case was tried before a jury in the Circuit Court for Jefferson County. The trial court granted defendant’s motion for a directed verdict against plaintiff’s count alleging wantonness, but allowed the case to go to the jury on the count alleging negligence. The jury found both defendant and plaintiff negligent and the trial court instructed it to return a verdict for the defendant. The jury did so and judgment was entered accordingly. Plaintiff perfected this appeal after the denial of his motion for a new trial.

Two issues are presented for our review in this appeal. The first is: Did the trial court properly enter a directed verdict in favor of the defendant on plaintiff’s count alleging wantonness? The second issue is: Did the trial court properly deny plaintiff’s requested jury charges founded on the rules of the road contained in Code 1975, §§ 32-5-112(a) and 32-5-115? After our review of this appeal, we conclude that the trial court properly granted defendant’s motion for a directed verdict on the count alleging wantonness, and properly denied plaintiff’s requested jury charges.

The pertinent facts are as follows. On January 3, 1978, plaintiff was riding his motorcycle on Glynn Drive in Birmingham, Alabama. Plaintiff was traveling north toward defendant’s home located on the east side of Glynn Drive. Defendant’s home is located on the downward side of a hill as one travels north on Glynn Drive. Testimony related that one traveling northerly could not see traffic on the downward side of the hill until one reached its top. Both plaintiff and defendant testified that they first saw each other at the time plaintiff came over its top. The parties’ testimony also was consistent and in agreement that defendant’s vehicle already was in the road at the time the parties first saw each other. Plaintiff was familiar with the road prior to the date of the collision. The defendant had lived at her residence for twenty-four years. The exact distance between plaintiff and defendant when they first saw each other is uncertain. Defendant testified that plaintiff was seven or eight car lengths away. Plaintiff testified that it may have been 25-30 feet. Whatever the exact distance may have been, it is clear that it was relatively short. When the collision occurred, part of defendant’s car was over the line dividing the two lanes of travel on Glynn Drive. Plaintiff struck defendant’s car in the area of the passenger door on the right side of defendant’s two-door, 1969 Ford Fairlane automobile. Although plaintiff’s motorcycle had no speedometer, plaintiff testified he was traveling 18 to 20 miles per hour when he first saw defendant. Plaintiff testified that defendant was backing slowly when he first saw her. Defendant’s testimony was similar. In her words she was backing at a normal speed.

Plaintiff theorizes that defendant acted in a wanton manner in causing the collision. Plaintiff argues that because defendant recognized his peril, she was obligated to do more than merely continue backing her automobile in a normal manner. He contends that defendant was obliged to take action to avert the recognized danger that she had created. Plaintiff takes the position that had defendant backed her vehicle more quickly, she could have cleared plaintiff’s lane of travel for him.

At the outset it is appropriate that we note some basic principles regarding wantonness and the propriety of a directed verdict. A party’s request for a directed verdict is governed by the following standard of review.

Where a directed verdict is requested, the entire evidence must be viewed in a light favorable to the opponent. When a reasonable inference may be drawn, which is adverse to the party requesting the directed verdict, the directed verdict is properly refused.

Alabama Power Company v. Robinson, 404 So.2d 22 at 24 (Ala.1981); Alford v. City of Gadsden, 349 So.2d 1132 at 1135 (Ala.1979); Alabama Power Company v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975).

A directed verdict properly is granted only where:

[T]he facts are such that all reasonable men must draw the same conclusion from them.... Unless the evidence is free from doubt or adverse inference, the question is for the jury. Alabama Power Co. v. Guy, 281 Ala. 583, 206 So.2d 594.
In civil cases, a question must go to the jury, if the evidence, or any reasonable inference arising therefrom, furnishes a mere gleam, glimmer, spark, the least particle, the smallest trace, or a scintilla in support of the theory of the complaint. . ..

Alabama Power Company v. Robinson, at 25; Turner v. People's Bank of Pell City, 378 So.2d 706 at 709 (Ala.1979); Draughon v. General Finance Credit Corp., 362 So.2d 880 (Ala.1978).

This court has made the following observation regarding wantonness.

Each case is bound by its material facts; that before it can be said an act or failure to act is wantonly done or omitted and an injury resulting thereby is wantonly inflicted, it must be shown that the party charged with committing the wrong or omitting to reasonably act in that behalf, had knowledge of the danger, present or impending, to the other party or parties so situated, and being conscious (from his knowledge of existing conditions and impending danger) an injury would likely or probably result from his conduct or omission to act, with reckless indifference to consequences, consciously and intentionally did the wrongful act, or omitted to do or discharge the known duty in the premises to avert such danger, and which produced the injurious result. Birmingham Electric Co. v. Turner, 241 Ala. 66, 1 So.2d 299; Alabama Power Co. v. Dunlap, 240 Ala. 568, 200 So. 617; Feore v. Trammel, 212 Ala. 325, 102 So. 529; Shepard v. Louisville & N. R. Co., 200 Ala. 524, 76 So. 850.

Simon v. Goodman, 244 Ala. 422 at 424, 13 So.2d 679 at 680 (1943) (emphasis added).

Applying the above-quoted principles, we conclude that the trial court correctly entered a verdict against plaintiff on his wan-

tonness count. Although plaintiff insists that defendant was aware of the danger presented by the circumstances, the testimony of both parties was to the contrary. Neither party was conscious that “an injury would likely or probably result . ... ” Plaintiff called the defendant as an adverse witness and elicited the following testimony.

Q. Insofar as you were concerned, when you first saw him come over that hill were you perceiving any sort of danger or fear that there might be a collision?
A. Yes, sir.
Q. So when you first saw him come over the hill, you thought there was a chance that there could be a collision?
A. Yes, sir, if I didn’t get the lane cleared.
Q. But you kept on backing up like you normally do; isn’t that right?
A. Yes, sir.
Q. And then at some point as you were backing up normally — you testified earlier that you saw Greg switch lanes about halfway between you and he; is that right?
A. Yes, sir.
Q. And then you stopped?
A. Yes, sir.
Q. And then a collision occurred?
A. Yes, sir.
Q. When you saw Greg was crossing over from his lane over to the other lane, did it appear to you that he was doing that on purpose?
A. Yes, sir.
Q. Did it look like he was in control of his motorcycle at that time?
A. Yes, sir.
Q. So, just so we get this down, then I’m through, Mrs. Harris, with my questions.
You were backing out and saw Greg, up here (indicating), and then you kept your eyes on him; is that right?
A. Yes, sir.
Q. And you knew there was a possibility of a collision?
A. Yes, sir.
(Emphasis added.)

Plaintiff testified to a similar effect on cross-examination:

Q. All right. Did you on the afternoon of this accident have any judgment or opinion how much distance it would take you to stop going at whatever speed you were going when you first saw her car? A. No, sir, I didn’t. I didn’t know I was going to hit the car.
(Emphasis added.)

The mere “possibility,” or “chance,” that there “might be” a collision does not rise to an awareness that injury “would likely or probably result” as stated in Simon v. Goodman. Thus, wantonness cannot be ascribed to defendant at the time the parties first observed each other.

The subsequent actions of the parties, from the time they first observed each other until the collision, also convinces us that plaintiff’s count alleging wantonness is unfounded. As plaintiff proceeded down the hill and approached defendant’s automobile, he took action to avoid defendant. He testified to the following on direct examination:

Q. What did you do in between those thirty feet between when you first saw the car and you hit it?
A. I saw her backing out, and I slowed down. And then I got closer and I — -I just put on the brakes and started sliding.
Q. Now, did you ever start to go to the left?
A. Yes, I did.
Q. And about when? Was that towards the end of that thirty or twenty-five feet or further back?
A. It was at the end of it.
Q. And what were you doing? Why were you going to the left?
A. Well, she was blocking mostly the right lane and a little bit of the left, and I was going to try to go around her.
Q. Did you ever get around her?
A. No, sir.

Defendant’s testimony substantially agreed with plaintiff’s.

Q. Whereabouts in that lane was he when you first saw him? Was he in his lane?
A. Yes, sir, coming over the top of the hill.
Q. And you were trying to clear his lane so he could drive on through?
A. Yes, sir.
Q. Continue, if you would. I’m sorry I interrupted you.
A. And about halfway down the hill he switched over into the left lane.
Q. Well, when you say, “halfway down”, do you mean about halfway from between when you first saw him and when you hit?
A. Yes, sir.
Q. Did he straighten up down here (indicating), or did he just keep on coming and go to the outside?
A. He kept coming until he got to my car, and then he laid his bike over and slid up under it.
Q. But it was about halfway from you; is that right?
A. Yes, sir, when he started switching over.
Q. And when you saw him switch lanes, what did you do?
A. I tried to get the car cleared, but I seen he was going to hit me so I just stopped.
Q. Tried to get the car clear of what?
A. The right lane.
Q. The lane that he had been in when you first saw him?
A. Yes, sir.
Q. But when you saw him switch lanes you just stopped?
A. Yes, sir.
Q. And what was the reason you stopped?
A. I seen he was going to hit me so I just stopped.

The above facts, under any reasonable view, cannot support a claim of wantonness. We cannot agree that defendant’s actions, even when viewed most favorably to plaintiff, constitute “reckless indifference to the consequences,” or that they show defendant “consciously and intentionally did some wrongful act or omitted some duty which produced injury to appellant . ... ” Taylor v. Thompson, 271 Ala. 18 at 21, 122 So.2d 277 at 279 (1960). Previously, this court has held that a plaintiff’s attempt to establish a case for wantonness amounted to no more than mere negligence, and that a directed verdict against a count for wantonness was given properly. Westbrook v. Gibbs, 285 Ala. 223, 231 So.2d 97 (1970); Taylor v. Thompson, supra. At most, that is the case here.

Next, we address plaintiff’s claim that the trial court erred in denying his requested jury charges modeled on Code 1975, §§ 32-5-112(a) and 32-5-115. Plaintiff requested the following charge based on § 32-5-112(a):

The driver of a vehicle entering a public highway from a private road shall yield the right-of-way to all vehicles approaching on such public highway.

His charge modeled on § 32-5-115 read:

The driver of a vehicle within a business or residence district emerging from an alley, driveway or building shall stop such vehicle immediately prior to driving onto a sidewalk or into the sidewalk area extending across any alleyway or private driveway, and shall yield the right-of-way to any pedestrian as may be necessary to avoid collision, and upon entering the roadway shall yield the right-of-way to all vehicle [sic] approaching on said roadway.

Although the trial court denied plaintiff’s above-requested charges, he gave the following charge, also requested by plaintiff:

The driver of a vehicle shall not back the same unless it shall reasonably appear that such a movement can be made with safety and without interfering with other traffic.

The given charge was taken from Code 1975, § 32-5-72(a).

Although there are at least several bases upon which the trial court could have denied plaintiff’s first two requested charges, one is adequately dispositive of this issue. The refusal of a requested written charge is not error where the trial court’s oral charge covered the principles contained in the requested written charge. Bateh v. Brown, 293 Ala. 704, 310 So.2d 186 (1975); Long-Lewis Hardware Company v. Lightsey, 392 So.2d 545 (Ala.Civ.App.1981); M. C. West, Inc. v. Battaglia, 386 So.2d 443 (Ala.Civ.App.1980); Rule 51, Alabama Rules of Civil Procedure. Here, the given charge adequately covered the principles of law in the refused charges to the extent they were applicable to the facts of this case.

The defendant was not entering or emerging from her driveway. She was already in the road at the time the parties first saw each other. On direct examination plaintiff testified to the following:

Q. Now, where was Mrs. Harris’ car when you first noticed it that day?
A. It was out of the driveway into the right lane.
Q. Now, we have used a photograph that’s come into evidence — Step down here with the Jury, Greg, please.
Q. Now, when you first saw her car, where were the front wheels?
A. They were right out of the gutter.
Q. Is there a gutter right in front of her driveway?
A. Yes.
Q. And that’s where the front wheels were, just right outside the gutter; is that right?
A. Yes.

Plaintiff further explained the location of defendant’s automobile on cross-examination:

Q. And when you saw her, her car was moving with the front wheels or the front of her car, I believe you said, just out of the gutter; is that right?
A. Well, they were out of the gutter.
Q. Well, I said they were — just out of the gutter when you first saw her; is that right?
A. Right.
Q. And by out of the gutter you mean on the street side of the gutter?
A. Yes, sir.
Q. She was out in the street then with the front of the car—
A. Yes, sir.
Q. —the first time you ever saw her, right?
A. Right.

Defendant’s testimony was consistent with plaintiff’s:

Q. Did you ever see Mr. McGehee come over that hill?
A. Yes, sir.
Q. When did you see him come over the hill?
A. I had gotten out into the street and he come over the top of the hill.

Mitchell Burns resided on Glynn Drive, where the collision occurred. He observed the collision from a distance of approximately 100 yards. Burns was a friend of plaintiff, and a neighbor of defendant. He testified that as plaintiff came over the hill, the front wheels of defendant’s automobile were in the gutter.

Under the facts adduced at trial, there was no basis for the giving of plaintiff’s requested charges. The trial court ruled properly in denying them. Therefore, no error was committed.

The judgment of the trial court, for all of the foregoing reasons, is due to be affirmed.

AFFIRMED.

MADDOX, FAULKNER, EMBRY, BEATTY and ADAMS, JJ., concur.

JONES, J., concurs specially.

TORBERT, C. J., and ALMON and SHORES, JJ., dissent.

JONES, Justice

(concurring specially).

I am not sure that the oral instructions are adequate to cover the charge requested. The two charges deal with different rules of the road. I nonetheless concur because I view the requested charge as inapplicable to the facts of this case.

TORBERT, Chief Justice

(dissenting).

I respectfully dissent. I believe it was error for the trial court to refuse to give the appellant’s requested jury charges based upon Code 1975, §§ 32-5-112(a) and 32-5-115. The Court holds that the trial court’s oral charge adequately covers the principles in the requested written charges. I cannot agree. The trial court charged:

“The driver of a vehicle shall not back the same unless it shall reasonably appear that such a movement can be made with safety and without interfering with other traffic.”

The plaintiff’s two refused charges stated that a vehicle entering the highway from a private road or drive and within a business or residential district, shall yield the right-of-way to all vehicles approaching on the public highway. No mention of §§ 32-5-112(a) and 32-5-115 was made to the jury, though the defendant was entering the road from her driveway when she first saw the plaintiff.

Upon seeing the plaintiff, the defendant failed to yield the right-of-way, continued to back out of the private drive, and did not clear the way for him to go around her. The evidence presented at trial showed that these two sections of the Code were directly applicable, since the defendant failed to take any measures to yield the right-of-way to the plaintiff.

It is likewise clear that the court’s oral charge was inadequate. That charge merely stated that the driver shall not back a vehicle unless it reasonably appears that it can be done “with safety and without interfering with other traffic.” This charge says nothing about entering a public highway, as was the case here. Neither does it mention the duty of the driver to yield the right-of-way to oncoming traffic. It simply instructs the driver to do the obvious — to back with safety.

For these reasons, I cannot concur with the majority. I believe it was error to refuse the two requested written jury charges and, as a result, I would reverse,

ALMON and SHORES, JJ., concur.

      . Both sections were repealed subsequent to the parties’ collision by Acts 1980, No. 80-434.


author: ALMON, Justice.

text:
    Gerald McNAIRY v. Frances McNAIRY.
    80-306.
    Supreme Court of Alabama.
    July 2, 1982.
    Jerry M. Barksdale & Phillip M. Bonner, Athens, for appellant.
    Kenneth Shelton, Decatur, for appellee.
   ALMON, Justice.

The parties attempt to raise several issues; however, only one is properly presented and it is dispositive of this appeal. That issue is whether the guardianship of Ella Bailey was properly removed from the probate court to the circuit court in accordance with Code 1975, § 26 — 2—2.

We hold that it was not properly removed and that the circuit court did not acquire jurisdiction of the guardianship. Consequently, the judgment of the circuit court is void and this appeal is due to be dismissed.

In May of 1980, the appellee was notified that her sister, Ella Barley, who lived in Detroit, was missing. Ella was found by Detroit Police and hospitalized. Appellee’s son, the appellant, was sent to Detroit to bring Mrs. Barley to Alabama. Mrs. Barley was brought to Alabama and admitted to a nursing home in Limestone County.

On June 3,1980, appellant filed a petition in the Probate Court of Limestone County to have Mrs. Barley declared to be of unsound mind. The appellee then filed a petition stating that Mrs. Barley was not incompetent; was not a resident of Alabama; and that in the event Mrs. Barley was declared to be of unsound mind, the appellee should be appointed guardian. The probate court held an inquisition on June 19, 1980, and the jury found Mrs. Barley to be of unsound mind. The probate court then issued an order appointing a local attorney as guardian for Mrs. Barley.

The appellee then filed a petition in the circuit court for removal of the cause from probate court to the circuit court. The motion was made pursuant to Code 1975, § 26-2-2 and § 12-11-30(4). The circuit court granted the petition and removed the cause. The appellant filed a response to the removal wherein he claimed the proper procedure to bring this matter before the circuit court would be by an appeal and not by removal under the code section in question. The appellee filed a motion to dismiss stating that the court lacked jurisdiction because Mrs. Barley was a resident of Michigan, contending Code 1975, § 26-2-47, required that before a guardian could be appointed the non-resident had to have been declared to be of unsound mind by a court in the state of her residence and because this was not done, a guardian could not be appointed pursuant to § 26-2-47. The motion to dismiss was granted by the circuit court, which also held for naught all prior orders of the probate court.

The appellant appeals from this order of the circuit court, contending the petition for removal was defective and did not give the circuit court jurisdiction.

Code 1975, § 26-2-2, provides:

“The administration or conduct of any guardianship of a minor or person of unsound mind may be removed from the probate court to the circuit court, at any time before the final settlement thereof by the guardian of any such guardianship or guardian ad litem or next friend of such ward or anyone entitled to support out of the estate of such ward without assigning any special equity, and an order of removal must be made by the court or judge upon the filing of a sworn petition by any such guardian or guardian ad litem or next friend for the ward or such person entitled to support out of the estate of such ward, reciting in what capacity the petitioner acts and that in the opinion of the petitioner such guardianship can be better administered in the circuit court than in the probate court.” (emphasis added)

Appellee’s attorney on appeal did not represent the appellee when the petition for removal was filed and had no part in preparing the petition.

The petition does not meet the requirements of the above section of the code. It was unsworn and did not recite in what capacity the appellee was acting. This Court in Smith v. Smith, 248 Ala. 49, 26 So.2d 571 (1946), stated:

“The appellees, on whose application the order of removal was made, are the next of kin of the deceased ward and the right of the several persons designated in the statute to remove a guardianship administration to the circuit court in equity, without assigning any special equity, is not accorded them. Code 1940, Title 21, § 26.
“There being no absolute right of removal then, in the absence of a special equity or circumstances where the remedy or relief would be inadequate, the probate court has jurisdiction of the final settlement of the guardianship and will retain such jurisdiction to the exclusion of equity. Martin v. Cameron, 203 Ala. 548, 84 So. 270; Ex parte Chapman, 225 Ala. 168, 142 So. 540; Lee v. Lee, 55 Ala. 590.”

The appeal is due to be dismissed because the circuit court did not have jurisdiction to enter the order from which the appeal was taken.

APPEAL DISMISSED.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


text:
    L. W., INC., a Corporation v. Shelby TRICE and Georgine F. Trice.
    80-347.
    Supreme Court of Alabama.
    July 2, 1982.

      Mary Elizabeth McFadden of McFadden, Riley & Parker, Mobile, for appellant.
    Edward C. Greene of Inge, Twitty, Duffy & Prince, Mobile, for appellees.
   ALMON, Justice.

The trial court in this case permanently enjoined construction of a public road across a residential subdivision lot on the grounds that the road would violate a restrictive covenant against structures not residential in nature. We affirm.

Shelby and Georgine Trice, appellees, own and reside on lot 7, New Country Club Estates, in Mobile County, Alabama. Lot 7 lies immediately north of and adjacent to lot 8, which is presently owned by L. W., Incorporated, appellant. Lot 8 is undeveloped except for a paved driveway running from west to east and serving the old Soost home in which Robert and Patricia Meaher now live. L. W., Inc., purchased a portion of the Soost property adjoining lots 7 and 8 to the east and proposed to create a six-lot subdivision connected with Rochester Road, which fronts lots 7 and 8, by a cul-de-sac crossing lot 8.

Lots 7 and 8 are subject to restrictive covenants which provide, in pertinent part, as follows:

“All numbered lots in said unit shall be known and described as residential lots. No structure shall be erected, altered, or placed or permitted to remain on any residential building lot in any such sub-division so delegated, other than one detached single-family dwelling not to exceed two and one-half stories in height and a private garage for not more than three cars and other accessory structures customarily incident to residential occupancy.
“No noxious or offensive trade or activity shall be carried on upon any lot nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood .. . . ”

The Trices sued L. W., Inc.; the trustees of the Soost estate, as holders of a vendor’s lien on lot 8; and the Meahers, as holders of an easement for ingress and egress across lot 8, seeking a permanent injunction against construction of a public roadway across lot 8. The trial court granted the injunction, finding as a matter of law that the road would be a “structure” within the meaning of the restrictive covenant and that it “cannot be characterized as residential in nature.” L. W., Inc., appealed from this decree.

The determinative issue is whether the road contemplated by L. W., Inc., constitutes a structure within the meaning of the above-quoted restrictive covenant. The parties have cited decisions closely on point from other jurisdictions which have reached conflicting results. For decisions holding that a roadway across a residential lot violates a restrictive covenant, see, e.g., Hanley v. Misischi, 111 R.I. 233, 302 A.2d 79 (1973); Thompson v. Squibb, 183 So.2d 30 (Fla.App.1966); Rush v. Miller, 21 Wash. App. 156, 584 P.2d 960 (1978), all holding that a road which benefits land outside the subdivision of which the lot in question is a part is not a residential use; and Beyt v. Woodvale Place Apartments, 297 So.2d 448 (La.App.1974), cert. denied, 300 So.2d 840 (La.1974), holding that a “wide hard-surfaced boulevard” is a “structure” and affirming an order that it be removed. For decisions holding that such a roadway does not violate restrictive covenants limiting the lot to residential purposes, see, e.g., Vinyard v. St. Louis County, 399 S.W.2d 99 (Mo.1966), holding that a roadway is not a structure; Bove v. Giebel, 169 Ohio St. 325, 159 N.E.2d 425 (1959), holding that because the restriction on the lot did not limit it to residential use within the subdivision, a road could be built on it to land having the same restrictions as applied within the subdivision; and R. R. Improvement Association v. Thomas, 374 Mich. 175, 131 N.W.2d 920 (1965), following Bove v. Giebel, supra, with the reservation that the complaining residents should be allowed to show that they have non-trivial objections to the roadway. For a general discussion of the subject and citations to other cases, see 25 A.L.R.2d 904 and its later case service.

We agree with the former group of courts that a roadway is a structure and that a lot limited for residential use is limited to residential use within the subdivision of which it is a part. This second point defeats L. W., Inc.’s contention that the proposed road, if held to be a structure, would be a structure “incidental to residential occupancy”; this restriction is intended to apply to structures incidental to residential occupancy of the same lot or perhaps neighboring lots in the same subdivision.

In this case the Trices specifically sought a lot that was not on a corner. Their previous home was on a street corner and they avoided less expensive corner lots in New Country Club Estates to buy Lot 7. Obviously, they relied on the “residential structure” restriction and had no expectation that their neighbors’ lots could be used for a road. On the part of L. W., Inc., it owns the land south of the old Soost estate and has a development plan to build a road which could be extended to the Soost property it now owns. There was some testimony that this access would be more difficult because of a drainage ditch in the area, but the road on the proposed development plan would cross the ditch anyway. L. W., Inc., seems to imply that the Mobile City Planning Commission would not approve this road, but our inspection shows that the Commission’s objection was only to a through street from New Country Club Estates to Lakewood, the development south of the Soost property. A cul-de-sac from Lakewood to the Soost property would not face this objection. Therefore, the record shows that the Trice’s objection is not trivial and the inconvenience to L. W., Inc., is not insurmountable.

Because we agree with the trial court that the proposed roadway is a “structure” as contemplated in the restrictive covenants and that it is not residential in nature, we hold that the trial court is due to be affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


author: FAULKNER, Justice.

text:
    Daphne V. RANKIN, f/k/a Daphne V. Waterman v. FIRST NATIONAL BANK OF FAIRHOPE.
    80-812.
    Supreme Court of Alabama.
    July 2, 1982.

      Christopher G. Hume, III of Gaillard, Little & Hume, Mobile, for appellant.
    Allan R. Chason of Chason & Chason, Bay Minette, for appellee.
   FAULKNER, Justice.

Daphne V. Rankin, formerly Daphne V. Waterman, and her ex-husband, Phillip M. Waterman, moved from Brookefield, Illinois, to Fairhope, Alabama, in May, 1977. The two were still married at the time.

On May 31, 1977, Ms. Rankin and her husband, Mr. Waterman, opened several bank accounts at the First National Bank of Fairhope (now First National Bank of Baldwin County). Ms. Rankin deposited a cashier’s check in the amount of $41,423.02, which represented the proceeds of the sale of her home of a prior marriage. Ms. Rankin purchased a certificate of deposit with $30,000.00. The remainder of the money was deposited in a passbook savings account and a joint checking account. Ms. Rankin testified that she explained to the bank employee that the source of the funds for the certificate of deposit was the sale of her house in Illinois and that the funds were owned by her. She further explained to the employee that she wanted an account which required both her and her husband’s signature to negotiate any transactions (an “and” account). Contrary to Ms. Rankin’s instructions, the bank employee selected a joint account with right of survivorship signature card (an “or” account), which permitted either Ms. Rankin or her husband to withdraw money from the account without the other’s signature.

Ms. Rankin testified that she thought the bank employee followed her instruction in drawing up the certificate of deposit. She signed signature cards for all three accounts at the same time, and did not understand the legal significance of the use of the term “or” instead of “and.” Thus, the account read “Daphne V. Waterman or Phillip M. Waterman.”

Ms. Rankin learned two years later that the bank had loaned her husband money and had accepted the certificate of deposit as security for the loan. Ms. Rankin claims she had no knowledge of the loan. Ms. Rankin later asked the bank official to change the names on the account and advised the official that the money in the certificate of deposit was hers alone. She also presented the bank official with a copy of her divorce decree from Mr. Waterman, in which he admitted the funds were those of his wife.

On September 27,1979, the bank notified Ms. Rankin of its intent to cash her certificate of deposit. On October 15, 1979, the bank cashed Ms. Rankin’s certificate of deposit, and applied it to the unpaid balance of Mr. Waterman’s loan.

Ms. Rankin instituted an action against the bank seeking $250,000.00 in compensatory and punitive damages. The complaint, as amended, contained six counts: two counts of conversion, one count based on the mistake of the bank and breach of its oral agreement, one count for breach of contract, a count for fraud and misrepresentation, and a sixth count for reformation. The action was tried before a jury. At the close of plaintiff’s evidence, the trial court granted a motion for directed verdict in favor of the bank. Ms. Rankin appeals. We affirm.

The basic issue on appeal is whether Ms. Rankin presented a sufficient quantum of evidence to prevent the granting of a directed verdict. The resolution of this issue turns on whether Ms. Rankin may vary the terms of the written agreement between her and the bank.

The general rule in most jurisdictions is that a written agreement is conclusive of the relationship between a bank and its depositor. 5A Michie, Banks and Banking § 46 (3rd ed. 1973). In an action between the parties whose names appear on a joint account, the question of ownership of the funds is a matter of the intent of the parties. See id.; Harris v. Dial, 398 So.2d 679 (Ala.1981). The bank account in question was in the name of “Phillip M. or Daphne V. Waterman,” and the account carried the right of survivorship. The legal effect of such an account is that either party may withdraw the funds without the other’s signature. Ms. Rankin saw the signature card, had the opportunity to read it, and finally signed the card. Ms. Rankin alleges no misrepresentations made to her by the bank. Under these circumstances, the written agreement between the bank and Ms. Rankin conclusively governs their relationship. The bank did not wrongfully permit Ms. Rankin’s former husband to give the joint certificate of deposit as security for a loan. Thus, the bank committed no legal wrong by cashing the certificate of deposit.

Ms. Rankin contends that the bank used its right of set-off in applying the certificate of deposit against the amount due on the defaulted loans. See Atkinson v. FDIC, 635 F.2d 508 (5th Cir. 1981). Ms. Rankin claims that there is not complete mutuality between obligors on the loan and holder of the certificate of deposit, and therefore, the bank improperly used the right of set-off. Id. Nevertheless, the bank did not exercise its right of set-off, but exercised its rights as a secured party under Alabama’s version of Article 9 of the Uniform Commercial Code. A bank exercises the right of set-off when it satisfies a debt with the funds of the debtor deposited in the bank; this occurs in an unsecured transaction, and the depositor’s funds are not given as collateral for the loan. Ms. Rankin does not contest the validity of the security agreement or the Bank’s exercise of its Article 9 remedies for default.

The judgment of the court below based on a directed verdict against Ms. Rankin is affirmed.

AFFIRMED.

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


author: EMBRY, Justice.

text:
    Danny Ray MAYNE v. STATE of Alabama.
    80-874.
    Supreme Court of Alabama.
    July 2, 1982.
    Fred Ray Lybrand, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard D. Melson, Asst. Atty. Gen., for appel-lee.
   EMBRY, Justice.

Danny Ray Mayne, a juvenile, appeals from an order of the circuit court transferring him to that court for criminal prosecution as an adult and ordering that he be bound over to the grand jury for further investigation of a pending charge against him of the offense of rape in the first degree. He contends the evidence presented at the hearing on the motion to transfer was insufficient to warrant a finding of probable cause based on the requirements of § 12-15-34, Code 1975.

On 17 June 1981, the State filed a motion to transfer requesting that Danny Ray Mayne be transferred to Calhoun County Circuit Court for treatment as an adult. On 20 July 1981, after a hearing on the motion, the court issued an order to transfer. The circuit court’s order, in pertinent part, is as follows:

“ORDER
“This matter came before the Court for hearing on a Motion To Transfer, filed pursuant to 12-15-34 of the Code of Alabama, 1975, .... The Court received testimony and the probation officer’s report filed pursuant to 12-15-34(e), and considering the testimony, the probation officer’s report and all aspects as required to be considered under such motion under 12-15-34(d), finds as follows:
“1. That probable cause exists that the offense charged was committed and that said child committed said offense.
“2. That said child at the time the alleged offense occurred was over 14 years of age and the act he was alleged to have committed would be a felony had he been an adult.
“3. That the child is not and has not been for some time enrolled as a student in school.
“4. That the child is physically mature and has the appearance of one much older than his chronological age of 17.
“5. That the child does not appear to fit the criteria of any treatment facility or probation within the Juvenile Court because of his physical size, his age, his educational background and his emotional maturity.
“6. That it appears to be in the best interest of the community and of this child to have him transferred to the Circuit Court of Calhoun County, Alabama, for criminal prosecution based on the above findings and the nature of the present offense.
“It is therefore ORDERED, ADJUDGED AND DECREED that the said Danny Ray Mayne be and is transferred to the Circuit Court of Calhoun County for criminal prosecution as an adult and is bound over to the grand jury for further investigation.. .. ” (Emphasis added.)

We affirm.

Code 1975, § 12-15-34(d), requires a transferring court to consider evidence of six specific (and other relevant) factors in determining whether a motion to transfer should be granted. Those factors which that court must consider are:

“(1) The nature of the present alleged offense;
“(2) The extent and nature of the child’s prior delinquency record;
“(3) The nature of past treatment efforts and the nature of the child’s response to such efforts;
“(4) Demeanor;
“(5) The extent and nature of the child’s physical and mental maturity; and
“(6) The interests of the community and of the child requiring that the child be placed under legal restraint or discipline.”

The written order of the circuit court in this case is in full compliance with § 12-15-34(d) as construed by this court in Young v. State, 387 So.2d 825 (Ala.1980); McKinney v. State, 404 So.2d 639 (Ala. 1981). There is no requirement that the transferring court make a specific finding on each of the six factors to be considered under § 12-15-34(d), only that the order contain some statement that those factors were considered in order that the appellate courts can make a determination that the requirements of the statute have been met. Young, supra; Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966).

This court has previously held that a transfer order containing a mere restatement of the factors set out in the statute is valid. Brown v. State, 353 So.2d 1384 (Ala.1977). Although the transferring court, in this case the circuit court, did not specifically enumerate each of the six factors in its order, it did state that “all aspects as required to be considered under such motion under 12-15-34(d)...” were considered. We opine that the above pronouncement sufficiently reflects consideration of the six factors stated in § 12-15-34(d). Accordingly, that language is sufficient to permit this court to give a meaningful review to the sufficiency of the transfer order and to conclude that it complies with the requirements delineated in Kent.

Because the defendant has conceded there is probable cause to send the charges to the grand jury, discussion of that issue is unnecessary.

In reviewing the record, this court has held that it will not interfere with a lower court’s order transferring a juvenile to circuit court unless that order is clearly erroneous. Duncan v. State, 394 So.2d 930 (Ala.1981); Williams v. State, 361 So.2d 1157 (Ala.1978). After careful review of the record in this case, we find no evidence on which to base a determination that the trial judge was clearly erroneous.

Therefore, let the judgment be affirmed.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    Eldridge STEPHENS v. Martha Ann HUDSON and Roy Hudson.
    81-252.
    Supreme Court of Alabama.
    July 2, 1982.
    Thomas L. Rountree, Oneonta, for appellant.
    B. J. McPherson, Oneonta, for appellees.
   BEATTY, Justice.

This appeal proceeded from a decree rendered in a boundary line dispute between coterminous landowners in which, following an ore ten us hearing, the trial court vested title to the land in question in the defendants. We affirm.

Plaintiff acquired title to the adjoining land of defendants by deed dated May 30, 1974. He purchased the land from the administrators of the estate of Fred Roberts, who died in 1973, having been confined in a mental hospital since 1963 as a non compos mentis. The present controversy began in 1975 when plaintiff had his land surveyed by a registered surveyor. The survey depicts plaintiff’s land with the defendants’ land lying east thereof, the east quarter-section line being the boundary between the two properties. However, defendants maintain a fence approximately six to eight feet west of that quarter-section line. The fence was erected around 1952 by Ed Black-wood, a predecessor in title to defendants, and extends 600 to 700 feet parallel to the east quarter-section line of plaintiff’s property. In 1979 plaintiff erected a fence on the quarter-section line which defendants removed. • Thereafter, in 1980, plaintiff brought suit requesting the trial court to establish the true boundary line between the lands as the quarter-section line determined in the survey and to assess damages against defendants for trespass and destruction of plaintiff’s fence. Defendants claimed ownership of the disputed strip of land through adverse possession by prescription. The trial court ordered that the boundary between plaintiff and defendants be fixed and determined at the fence constructed by the predecessor in title to defendants some twenty-eight years prior to the commencement of this suit.

On appeal, plaintiff claims that the trial court erred by allowing defendants to assert the defense of prescription or adverse possession because, according to plaintiff, defendants failed to comply with the required twenty-year possession period for prescription. An examination of the facts, in particular of the dates and title holders involved in this case, is necessary in order to understand plaintiff’s claim.

Fred Roberts, predecessor in title to plaintiff, was under the disability of insanity when the prescription period commenced in 1952, i.e., the year the predecessor in title to defendants constructed the fence in question. Code of 1975, § 6-2-8, extends the statute of limitations for defending or acquiring title to real property for a period of three years after a disability, e.g., minority, insanity, imprisonment, is removed. Thus, plaintiff contends that he had three years after the death of Mr. Roberts within which to assert his claim to the disputed property, thereby extending the twenty-year limitation period necessary for prescription. We respectfully disagree for the following reasons.

The latter part of § 6-2-8 provides that “no disability shall extend the period of limitations so as to allow such action to be commenced, entry made or defense made after the lapse of 20 years from the time the claim or right accrued.” That provision is a statutory affirmation of our doctrine of prescription. Scroggins v. Reneau, 277 Ala. 243, 168 So.2d 614 (1964). Here, the defendants, or their predecessors in title, having been in possession of the land in question and exercising absolute dominion over it adverse to all the world for more than twenty years, would have title to the property under our rule of prescription. Title had already vested in defendants by the time of Roberts’s death in 1973. Even if Roberts had died before the “lapse of 20 years,” his administrator, not plaintiff, would have been the only one eligible to suspend the statute of limitations under § 6-2-8 in order to assert a claim. That section operates only in favor of the person to whom the claim first accrued [the incompetent], and not of those who succeeded to his rights. Yerger v. Cox, 281 Ala. 1, 198 So.2d 282 (1967). Thus, plaintiff’s reliance upon § 6-2-8 is not well taken. The trial court did not err in finding actual, hostile, exclusive possession of the disputed tract by defendants for over twenty years. Such possession was established by the evidence. The trial court’s decree must be affirmed. It is so ordered.

AFFIRMED.

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


text:
    Jimmy Christopher WILLIAMS, a minor, who sues by and through his next friend and mother, Carol Metcalf v. ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, a Corporation.
    81-256.
    Supreme Court of Alabama.
    July 2, 1982.

      Dow T. Huskey of Huskey & Etheredge, Dothan, for appellant.
    William C. Carn, III of Lee & Mclnish, Dothan, for appellee.
   BEATTY, Justice.

The question presented by this appeal is whether an insured’s misrepresentation terminates the insurer’s obligation to provide coverage and defend against a claim for damages. Upon trial of the insurer’s declaratory judgment action, the court below found that the misrepresentation violated the cooperation clause in the policy and prejudiced the insurer’s defense, thereby ending any duty to cover or defend the insured. We agree with this result in the circumstances here presented.

The facts are undisputed. On March 25, 1979, Lisa Buford, then age fifteen, drove a car owned by her father, Thomas Buford, and insured by the plaintiff-appellee (Alabama Farm Bureau). Riding with Lisa were Tim Eldridge and Janet Matthews. The car struck and injured Jimmy Christopher Williams, a nine-year-old boy. The victim and the three occupants of the car were the only witnesses to the accident.

By the time a policeman came to investigate, Tim Eldridge, then age nineteen, had told Lisa Buford that he would say he was the driver since Lisa was unlicensed. Accordingly, both the police report and an insurance claim form signed three days later by Lisa’s father state that Tim was driving. On March 29 and twice more in May, Alabama Farm Bureau’s adjuster met with and took recorded statements from Tim, Lisa, Janet and Mr. Buford. All of the statements, including two separate ones from Tim, reflect that Tim was the driver.

In June 1979 an action to recover damages was filed on behalf of Jimmy Williams against Tim Eldridge. Alabama Farm Bureau undertook the defense of Tim as an insured under the policy. A deposition of Tim was set for February 7, 1980, but on that morning, over ten months after the accident, Tim admitted to Alabama Farm Bureau’s counsel that he was not the driver. Alabama Farm Bureau then denied coverage and refused to proceed further with the defense. After Tim obtained new counsel, his deposition was taken, and Lisa was joined as a defendant. Alabama Farm Bureau then filed the present declaratory judgment action against Jimmy Williams, Tim Eldridge and Lisa Buford, and the trial court temporarily enjoined further proceedings in the original action.

Alabama Farm Bureau sought a declaration that the misrepresentations of the driver’s identity constituted a breach of the insurance policy’s cooperation clause sufficient to terminate any duty to provide coverage or defend the insured. The clause reads as follows:

“The insured shall cooperate with the Company and upon its request, attend hearings and trials, assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits. The insured shall not, except at his own costs, voluntarily make any payment, assume any obligation or incur any expense other than for such immediate medical and surgical relief to others as shall be imperative at the time of the accident.”

After an ore tenus hearing, the trial court found that the misrepresentation violated the cooperation clause and prejudiced Alabama Farm Bureau’s defense. The court’s reasoning was that, although trial preparation would not be affected, prejudice during the trial itself would result since the only witnesses for the defense had so seriously undercut their own credibility. The trial judge therefore granted the declaratory relief sought by Alabama Farm Bureau.

The threshold issue before us is whether the deception involved here constitutes noncooperation within the meaning of the policy. Although the appellants argue that the language of the cooperation clause does not encompass the conduct here, we have no doubt the insured violated this provision of the contract, for as Hand, J., stated:

“[I]t is obviously true that an insured has not ‘cooperated’ with the insurer, if he deliberately induces the insurer to plead what he believes to be false, even though he later recants.... If it appears that he, the insured, is ready deliberately to put forward a false statement upon one relevant fact, his testimony as to what actually happened is ordinarily much impaired.”

Farm Bureau Mutual Automobile Insurance Company v. Bascom, 287 F.2d 73, 75 (2d Cir.1961).

Only a material and substantial failure to cooperate relieves an insurer of its duty to cover and defend, e.g., Home Indemnity Company v. Reed Equipment Company, Ala., 381 So.2d 45, 48 (1980). We must therefore consider whether the misrepresentation of the driver’s identity would have had a material and substantial effect on the original damages action. The “test for determining what is material and substantial with respect to an insured’s alleged failure to cooperate” amounts to a “requirement of prejudice to the insurer.” Id. at 48. The parties do not dispute that the trial judge made this test the basis of his decision.

The appellants urge that we review the decision without regard for the ore ten-us rule, which “applies only to the resolution of conflicts in the evidentiary facts,” id. at 47. See also Alabama Farm Bureau Mutual Casualty Insurance Company v. Mills, 271 Ala. 192, 123 So.2d 138, 139, 142 (1960). We agree that the evidence concerning the misrepresentation was undisputed. Nevertheless the effect of the misrepresentation on the witnesses’ credibility was a disputed factual matter decided by the trial court which took the testimony of those witnesses. Moreover, the ultimate question of whether or not the noncooperation is material and substantial is a question for the trier of fact, State Farm Mutual Automobile Insurance Company v. Hanna, 277 Ala. 32, 166 So.2d 872 (1964). Accordingly, “[t]here is a strong presumption in favor of the correctness of the court’s findings on questions of fact, and we are disinclined to draw a different conclusion from the same facts — particularly when before us in a cold record.” Southern Rock Products Company, Inc., v. Board of Zoning Adjustment of City of Trussville, 282 Ala. 186, 190, 210 So.2d 419, 422 (1968).

The appellants give us no reason to doubt the correctness of the conclusion below that the misrepresentation would prejudice Alabama Farm Bureau’s defense. From the judge’s findings and the record, the defense appears to rest entirely upon the testimony of Lisa Buford, Tim Eldridge and Janet Matthews that Lisa, driving carefully and under the speed limit, had no chance to avoid the collision, because Jimmy Williams swerved into the car on his bicycle to avoid a pothole. Yet these three witnesses, the only ones other than the victim, together engaged in systematic deception that casts considerable doubt on whatever they say subsequently concerning the accident.

The appellants point out that the misrepresentation could not have been intended to procure insurance coverage since Alabama Farm Bureau was liable under the policy whether Tim or Lisa drove. This fact does not control, however, for neither the motives of the witnesses nor the terms of the insurance coverage determine whether Alabama Farm Bureau remained able to put on an adequate defense. The case cited by appellants on this point, MFA Mutual Insurance Company v. Cheek, 66 Ill.2d 492, 6 Ill.Dec. 862, 363 N.E.2d 809 (1977), offers no support to the appellants’ contention, even were it binding in our jurisdiction. The Illinois Supreme Court in dictum noted “as an added reason for insurer responsibility” the insurer’s liability regardless of who was driving. However, the primary basis for the decision in Cheek was the insurer’s failure to allege or prove prejudice. Had the issue of prejudice been properly raised, the majority of the court in Cheek could have considered the case from the perspective noted in the concurring opinion: that the occupants of the car “largely destroyed” their credibility as witnesses, and “the insurer may well have been severely prejudiced,” 6 Ill.Dec. at 867, 363 N.E.2d at 814.

The appellants further cited Home Indemnity Company, supra; Mills, supra; and General Accident Fire & Life Assurance Corporation v. Rinnert, 170 F.2d 440 (5th Cir.1948), to argue that no prejudice resulted from the ten-month delay where all witnesses remained available and the truth was told before trial was set, allowing Alabama Farm Bureau to decide whether to settle or defend. All of the cases cited, however, are distinguishable. In Home Indemnity Company we found no misconduct bearing on credibility. In Rinnert the insured came forward with the truth about the identity of the driver only five days after the accident, and the court found nothing to indicate prejudice in the subsequent trial. Mills simply states that the question of noncooperation is not one of mere time lapse, 123 So.2d at 144. We focus here not on the time element but on the lack of any evidence in defense other than the testimony of Lisa and her friends that Lisa drove with due care. Their deception may have destroyed the value of that testimony, and in such circumstances the trial court was certainly justified in finding prejudice.

We do not hold that any noncooperation affecting credibility is ipso facto prejudicial. Our holding is limited to the facts of this case, where, from the trial judge’s findings, it appears that the insured’s noncooperation largely negated the only evidence the insurer could offer in defense. In general, whenever the prejudicial effects of noncooperation are at all unclear, the insurer’s best course of action may be to proceed with the defense while reserving the right to deny coverage. An insurer may so proceed whether or not the insured is willing to sign a nonwaiver agreement, Home Indemnity Company, supra, 381 So.2d at 52. Such an approach will allow the use of hindsight in determining prejudice or will avoid the question altogether where the defense turns out to be successful.

Let the judgment be affirmed.

AFFIRMED.

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

      . Alabama Farm Bureau has belatedly suggested that the insured violated the notice provision as well as the cooperation clause of the insurance policy. This contention is significant, because the insurer need not show prejudice where failure to give adequate notice of the claim is at issue. See generally Home Indemnity Company, supra, 381 So.2d at 49 n.3. However, Alabama Farm Bureau failed to make this contention at trial. In fact, Alabama Farm Bureau in its trial brief specifically distinguished cases involving the notice issue and stated that “[t]he present case . .. involves the second line of cases” dealing with the cooperation requirement. By thus relying on the ground of noncooperation, Alabama Farm Bureau has “waived all other grounds of forfeiture.” Auto-Owners Insurance Company v. Rodgers, Ala., 360 So.2d 716, 718 (1978).