text:
    Sidney H. WALKER and Mobus, Inc. v. James E. DUTTON.
    80-39.
    Supreme Court of Alabama.
    July 2, 1981.
    Sidney H. Walker, Ozark, for appellants.
    No brief for appellee.
   EMBRY, Justice.

Sidney H. Walker and Mobus, Inc., plaintiffs below, appeal from a final judgment entered on a jury verdict in favor of defendant, James E. Dutton, in an action for breach of contract.

Sidney Walker, James Dutton, and a third party formed a computer service corporation: Mobus, Inc. Walker alleged that pursuant to the terms of an oral agreement between him and Dutton, he advanced Dut-ton education and living expenses for which Dutton was to write computer programs for, organize, and manage Mobus, Inc. Walker allegedly was to be repaid for the advances to Dutton from receipts of Mobus, Inc. Allegedly, Dutton refused to perform and as a result Walker and Mobus, Inc. were unable to recover the monies advanced to Dutton.

Walker and Mobus, Inc. assert there is reversible error shown in the record on account of the trial court’s refusal to give plaintiffs’ requested charge regarding equitable estoppel; the jury instructions, overall, were prejudicial to plaintiffs’ case; the charge regarding an affirmative defense was an incorrect statement of the law; and relevant and material evidence offered by plaintiffs was disallowed.

A careful examination of the record discloses no preservation of any alleged error regarding the actions of the trial court of which plaintiffs complain. Rule 51, ARCP, explicitly provides that no party may assign as error the giving or failing to give a written instruction or the giving of an erroneous, misleading, incomplete or otherwise improper oral charge unless he objects thereto, stating the matter to be which he objects and the grounds of his objection. No objections were made in this case.

Concerning the trial court’s actions disallowing evidence offered by plaintiffs; we are not able to find that objections were made in that regard. Rule 46, ARCP, requires the party adversely affected to apprise the trial court of his objections and the grounds for such objections. C. Gamble, McElroy’s Alabama Evidence, § 429.01 (3d ed. 1977). Plaintiffs made no objections to the trial court’s rulings; as a consequence, no error was preserved in that regard.

There being no error in the record, the judgment below is due to be and is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    Ex parte James T. STRICKLAND, Circuit Judge of the Thirteenth Judicial Circuit of Alabama. (Re: Judge James T. STRICKLAND v. Honorable Charles WRIGHT, Presiding Judge of the Alabama Court of the Judiciary).
    80-325.
    Supreme Court of Alabama.
    July 2, 1981.
    Joseph J. Boswell, Mobile, and Alton R. Brown, Jr., of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for petitioner.
    Rosa G. Hamlett, Asst. Atty. Gen., for respondent.
   EMBRY, Justice.

James T. Strickland, Circuit Judge of the Thirteenth Judicial Circuit of Alabama, petitions for the writ of mandamus and the writ of prohibition directed to Honorable Charles Wright, as Presiding Judge of the Alabama Court of the Judiciary. Petitioner seeks a writ of mandamus ordering Judge Wright to strike a motion of the Alabama Judicial Inquiry Commission seeking to tax against petitioner the costs incident to all or part of oral depositions taken in an action against the petitioner for violation of the Canons of Judicial Ethics. Petitioner also seeks a writ of prohibition to prevent Judge Wright from granting the Commission’s motion to tax those costs.

The Court of the Judiciary found petitioner guilty of violating several of the Alabama Canons of Judicial Ethics and ordered that he be suspended from the office of circuit judge without pay for six months. Petitioner appealed to this court from that order and we affirmed. Respondent thereafter granted the Judicial Inquiry Commission’s motion and taxed petitioner with $3,093.69 in costs incident to the taking of depositions in the action against him. Of those costs the sum of $1,509.07 was incurred in taking depositions that were not used at trial. The balance of the costs represented costs incurred in taking those which were used at trial; those of petitioner and one Joyce Sasso.

Petitioner raises two separate issues by his petition: (1) whether the Court of the Judiciary has authority to tax costs of depositions taken by the Judicial Inquiry Commission in preparing for trial regardless of whether they are used at trial; and, (2) whether the Court of the Judiciary abused its discretion when taxing costs against petitioner.

Petitioner asserts that the Court of the Judiciary is not given authority under Ala. Const. 1901, Amend. No. 328 (the so-called Judicial Article), § 6.18, to tax costs against a defendant judge. That section does, however, authorize the Court of the Judiciary to “. . . apply such other sanction as may be prescribed by law . . . . ” Furthermore, it authorizes this court to adopt procedural rules governing the Court of the Judiciary. Rule 10, of the Rules of Procedure of the Court of the Judiciary, adopted by this court, provides:

The process and procedure before the Court shall be as simple and direct as reasonably may be. Except where inappropriate, or otherwise provided for by these rules, the provisions of the Alabama Rules of Civil Procedure and the rules of evidence used in civil cases in Alabama shall govern proceedings before the Court, but the allegations of the complaint must be proved by clear and convincing evidence.

The Rules of Procedure, Alabama Court of the Judiciary, make no specific provision regarding the taxing of costs; however, rule 54(d), ARCP, provides:

(d) Costs. Except when express provision therefor is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs, and this provision is applicable in all cases in which the state is a party plaintiff in civil actions as in cases of individual suitors. . . .

Additionally, Code 1975, § 12-21-144, provides:

The costs of any deposition introduced, in whole or in part, into evidence at the trial by the party taking it shall be taxed as costs in the case upon the certificate of the person before whom the deposition was taken; the costs of depositions in other cases shall be taxed as costs in the case only if the court so directs.

We are persuaded by reason and logic as well as the authorities, including those referenced above, that the Court of the Judiciary is empowered by law to tax the costs of any deposition introduced, in whole or in part, into evidence at trial by the party taking it, upon the certificate of the person before whom the deposition was taken; the costs of depositions in other cases shall be taxed as costs in the case only if the court so directs. Taxation of costs of depositions not actually used at trial is within the discretion of the trial court, Pick-Bay Company v. Younkin, 287 Ala. 103, 248 So.2d 570 (1971), to the contrary notwithstanding. Pick-Bay, in one respect, was bottomed upon Code 1940 as amended, Tit. 11, § 77, and held that when costs are improperly taxed against one not liable to pay them, the proper method to raise the point is by a motion to retax (under the provisions of § 77). Section 65 of the former code was the section under which costs were given to the successful party, or apportioned at the discretion of the court. The latter section was superseded by Rules 41 and 54, ARCP. Taxation of costs for taking depositions was provided for by Tit. 7, § 298, of the 1940 Code as amended. Modification of that code section is found in Code 1975, § 12-21-144. Also see Appendix 111, ARCP, Statutes Modified.

It is stated in 6 Moore’s Federal Practice, ¶ 54.77[4]:

[T]he power to tax as costs certain of the expenses of taking depositions is well settled, if the taking of the depositions was reasonably necessary, even though they may not have been used at the trial; but as with costs generally, the taxing of the prevailing-party’s deposition costs in his favor is a matter committed to the sound discretion of the trial court, which may deny some or all of such costs as the circumstances of the case warrant. The trial court’s exercise of discretion will normally not be interfered with by an appellate court.
Part or all of a deposition, depending somewhat upon its use, is certainly reasonably necessary for use in the case where it is read into evidence in connection with some material matter; and may properly be treated as reasonably necessary, although not read into evidence, when it serves a real value in connection with cross-examination, but not when its use is rather trivial. And a deposition may be reasonably necessary for use in the case, although it is not used at all at trial as where: it is used in connection with a successful motion for summary judgment; it appeared reasonably necessary in connection with a certain material issue, although this issue was subsequently eliminated from contest at a pre-trial, or for some other reason the issue was not contested at the trial.

The question that remains concerns the costs taxed for taking those depositions which were not actually used at trial. Were those depositions reasonably necessary for use in the case? The affidavit in support of the Commission’s motion for taxing of costs alleges that all depositions taken were necessary for preparation of the Commission’s case. We are not able to make an independent determination in this regard because there is nothing before us which contradicts the allegations of the affidavit in support of the motion.

Mandamus and prohibition are extraordinary remedies and will not issue unless there is no other adequate remedy. Ex parte Locke, 346 So.2d 419 (Ala.1976). Mandamus is proper where there is a clear specific legal right shown for enforcement of which there is no other adequate remedy. Echols v. Housing Authority of Auburn, 377 So.2d 952 (Ala.1979). Prohibition is proper for the prevention of a usurpation or abuse of power where a judge or court undertakes to act in a manner in which he or it has no jurisdiction. Meeks v. Town of Hoover, 286 Ala. 373, 240 So.2d 125 (1970). The taxing of costs, however, is within the sound discretion of the trial court, Bukley v. Carroll, 366 So.2d 1094 (Ala.1978), and will not be controlled by mandamus except in extraordinary cases for gross abuse of that discretion. Ex parte Driver, 258 Ala. 233, 62 So.2d 241 (1952). The trial court is, by virtue of Code 1975, § 12-21-144 and Rule 54(d), ARCP, authorized to tax such costs and petitioner has no clear legal right to prevent those costs being taxed against him. Neither has petitioner made a showing of gross abuse of discretion in taxing the costs in this ease. Therefore the petition is due to be and is hereby denied.

PETITION DENIED.

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


author: ADAMS, Justice.

text:
    HAROLD BROWN BUILDERS, INC. v. The JORDAN COMPANY, A Georgia Corporation d/b/a Jordan Supply Company.
    80-254.
    Supreme Court of Alabama.
    July 10, 1981.
    James R. McKoon, Jr., of McKoon & Rai-ford, Phenix City, for appellant.
    John V. Denson and J. Tutt Barrett of Samford, Denson, Horsley, Pettey, Martin & Barrett, Opelika, for appellee.
   ADAMS, Justice.

In this case, Harold Brown Builders, Inc., defendant below, appeals from the granting of summary judgment against it on the second count of its counterclaim. Defendant asks our review of the propriety of the order granting that judgment.

The Jordan Company, plaintiff, brought action against defendant to collect the outstanding indebtedness due on a series of notes and mortgages. Defendant answered and alleged two counts in its counterclaim. The first count sought $200.00, the statutory penalty under Code 1975, § 35-10-30, for plaintiff’s alleged failure to make an entry of satisfaction on one of the mortgages held by the plaintiff. The second count sought damages in the amount of $125,000.00 for plaintiff’s alleged willful, wanton, and malicious failure to satisfy the disputed mortgage, and for the alleged attempt by the plaintiff to extort money from the defendant over and above the amounts due on the note and mortgage involved.

Plaintiff moved for summary judgment on the second count of defendant’s counterclaim, and made an offer of judgment to defendant in the amount of $200.00 on its first count. The motion was heard before trial and granted by the circuit court. The case then proceeded to trial before a jury on plaintiff’s complaint, and the first count of defendant’s counterclaim which sought $200.00 in statutory damages. The circuit court judge, at the close of trial, in response to motions for directed verdicts by both plaintiff and defendant, directed the jury to return a verdict for the plaintiff on its complaint, in the amount of $16,575.46, and for the defendant on the first count of its counterclaim in the amount of $200.00. The jury returned the verdicts as directed.

Defendant contends that the trial court erred in granting summary judgment on the second count of its counterclaim, and that it should have been allowed to proceed to trial on that count. Two issues are dis-positive of this appeal. The first is whether plaintiff’s motion for summary judgment was properly supported as required by Rule 56, ARCP. The second is whether it was appropriate for the trial court to grant summary judgment. We answer yes to both and affirm.

Defendant argues that plaintiff failed to properly support its motion for summary judgment. Although plaintiff’s motion for summary judgment was not accompanied by affidavits, it was supported by the deposition of plaintiff’s vice-president that was taken by the defendant. In view of this, we cannot agree with defendant that plaintiff’s motion was unsupported. Further, we observe that plaintiff’s motion for summary judgment is properly within the scope of Rule 56(b), ARCP, and that supporting affidavits are not required under that subsection of the rule. That rule provides: “A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.” [Emphasis added.]

We are aware, as defendant argues, that Rule 56(e), ARCP, addresses the need for a party to respond to a motion for summary judgment, when such a motion is made and supported under Rule 56. However, we do not accept defendant’s argument that affidavits were necessary to support plaintiff’s motion. Rule 56(b), ARCP, was applicable to the facts of this case because the plaintiff moved for summary judgment against a counterclaim of the defendant.

We next consider the issue of whether it was appropriate for the trial court to enter summary judgment against the defendant on count two of its counterclaim. This court has said, considering the question of the appropriateness of summary judgment, that:

In determining whether a summary judgment is proper, the ultimate question is whether there remains a genuine issue of material fact, and if there is one, summary judgment is inappropriate, Rule 56(e) ARCP; 6 Moore’s Fed.Prac., par. 56.15 (2nd ed. 1971). Put in another way, “[Wjhere the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented.”

First National Bank of Birmingham v. Culberson, 342 So.2d 347, 351 (Ala.1977).

More recently, the court observed in Campbell v. Alabama Power Co., 378 So.2d 718, 721 (Ala.1979), that the scintilla evidence rule applies to summary judgment motions:

This rule must be considered in the context of the scintilla evidence rule applicable in Alabama. Thus, if there is a scintilla of evidence supporting the position of the party against whom the motion for summary judgment is made, so that at trial he would be entitled to go to the jury, a summary judgment may not be granted. Donald v. City National Bank of Dothan, 295 Ala. 320, 329 So.2d 92 (1976). Furthermore, all reasonable inferences from the facts are to be viewed most favorably to the non-movant. Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976).

With the above principles in mind, we will consider defendant’s contention that the entry of summary judgment against it was error.

At trial, the defendant represented by an attorney other than its present one, failed to respond to plaintiff’s motion for summary judgment. Although an adverse party is not required to respond to a motion for summary judgment, this' court has noted failure to do so may be perilous for the adverse party. Ray v. Midfield Park, 293 Ala. 609, 308 So.2d 686 (1975). By defendant’s failure to respond to the motion, the trial court had no alternative but to consider the evidence presented by the moving party as uncontroverted. Donald v. City National Bank, 295 Ala. 320, 329 So.2d 92 (1976). The remaining question for the trial court then became, whether it was appropriate for summary judgment to be entered against the defendant. Miles v. Bank of Heflin, 295 Ala. 286, 328 So.2d 281 (1975). We have reviewed the deposition of plaintiff’s vice-president and find no material issue of fact remaining, and, therefore, agree with the decision of the trial court.

Defendant contends that it is logically inconsistent for the trial court to allow its first count, for statutory damages, to go to the jury, and to grant summary judgment against its second count which arises from essentially the same facts. Defendant calls our attention to the fact that whether plaintiff acted wilfully, wantonly or maliciously in not satisfying his mortgage as alleged in his complaint is properly a jury question. We agree that in many situations this is true. Here, however, the trial court was required to accept as uncontroverted the evidence in the deposition of plaintiff’s vice-president because of defendant’s failure to respond to the motion for summary judgment. Taken as uncontroverted, we believe there was no remaining material issue of fact for the jury to resolve. Further, we see no logical inconsistency in holding that there may be a breach of Code 1975, § 35-10-30, without accompanying malice, willfulness, wantonness or extortion.

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

AFFIRMED.

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


text:
    Vaughn CAUDLE v. Jimmy ELLISON.
    80-258.
    Supreme Court of Alabama.
    July 10, 1981.

      Macon L. Weaver of Weaver, Price & Pearson, Huntsville, for appellant.
    George A. Moore of Johnston, Johnston & Moore, Huntsville, for appellee.
   ADAMS, Justice.

This is an appeal from a judgment of the Madison County Circuit Court, denying plaintiff Vaughn Caudle relief under his motion pursuant to Rule 60(b)(6), A.R.C.P., to have a default judgment set aside.

On January 14, 1979, Vaughn Caudle’s brother, Sindle Thurman Caudle, was involved in an automobile accident while transporting the cousin of both men to Decatur, Alabama, in an automobile owned by Vaughn Caudle. At the hearing to set aside the default judgment, Vaughn Caudle testified to the effect that he had not directed his brother to take their cousin to Decatur, although he had given him permission to use his automobile to take her there. The attorney for the insurance company sought at the hearing to show that Vaughn Caudle had made a statement in a conversation with the insurance company’s adjuster to the effect that he had asked his brother to take their cousin to Decatur.

The suit in this case was filed on June 27, 1979, against Vaughn Caudle and Sindle Thurman Caudle, as uninsured motorists, and State Farm, an uninsured motorist carrier. The court records show that Deputy Sheriff John Macklin certified that he served Vaughn Caudle on August 7, 1979. On September 20, 1979, a default judgment in the amount of $31,500.00 was entered against Vaughn Caudle.

On July 11, 1980, the plaintiff filed a garnishment against the wages of Vaughn Caudle, due him by his employer Dunlop Tire & Rubber Company. Notice of this garnishment was received by Vaughn Cau-dle on August 4, 1980, and on September 9, 1980, Caudle filed a motion under Rule 60(b)(6), A.R.C.P., to set aside the default judgment. At the hearing he testified that deducting $68.00 per payday, it would take him between 10 and 15 years to pay the judgment.

The only issue raised by the briefs of the parties is whether the trial court abused its discretion in failing to grant Vaughn Cau-dle relief under his motion seeking relief as prescribed by Rule 60(b)(6), A.R.C.P. The trial court did not err and, therefore, we affirm.

Once again we are called upon to choose between two competing policies in the law, namely, the policy to afford relief from unjust judgments and the policy of the law to accord to its judgments a degree of finality which engenders respect in the eyes of the public. Two principles must be kept in mind in resolving these two competing policies, as they arise in the instant case. The first principle is that a strong presumption of correctness attends the sheriff’s return of service and the party challenging it has the burden of establishing lack of service by clear and convincing proof. AAA Sewing Machine Co. v. Shelby Finance Co., 384 So.2d 126, 127 (Ala.Civ.App.1980); Howard v. Drinkard, 261 Ala. 555, 556, 74 So.2d 704 (1954). The second principle is that when a trial court hears witnesses ore tenus, the conclusion of the trial judge will be affirmed if it is fairly supported by credible evidence under any reasonable aspect and is not palpably wrong or manifestly unjust.

The inclination of this court to afford relief against unjust judgments was shown in our recent decision in Wiggins v. Tuscaloosa Warehouse Groceries, Inc., 396 So.2d 91 (Ala.1981), where we affirmed the decision of the trial court in setting aside a default judgment against Tuscaloosa Warehouse Groceries for $25,000.00, albeit the plaintiff filed his motion under Rule 55(c), A.R.C.P., instead of Rule 60(b), A.R.C.P.

We note that the plaintiff’s motion here was timely, although grounds (1), (2), and (3) of Rule 60(b), A.R.C.P., require the motion to be filed in four months. The ground used by the defendant — ground (6) —only requires that the motion be filed within a reasonable time. Defendant Cau-dle testified that he only learned about the judgment when notice of garnishment was served on him and that his motion was therefore timely filed, even though filed some eleven months after the judgment was entered.

The facts in the instant case seem more appealing for Rule 60(b)(6) treatment than the facts in the Tuscaloosa Warehouse case. In the Tuscaloosa Warehouse case, the warehouse admitted that it received process and forwarded it to its insurance carrier, but the insurance carrier did not promptly forward the process to its attorneys, thus resulting in the judgment by default. Here, the defendant claims, although his testimony is conflicting, that he never received process from the sheriff’s office. However, the appellants are positioned differently in these two cases. In the Tuscaloosa Warehouse case, we were faced with the question of whether or not we should reverse the Circuit Court of Tuscaloosa County on a judgment setting aside a default judgment. In the instant case, we are concerned with the question of reversing the trial judge where he has refused to set aside a default judgment.

The defendant was the only witness at the hearing on the Rule 60(b) motion. A careful review of the record discloses that there was considerable testimony upon which the trial judge could refuse to set aside the default. We considered the following:

THE COURT: Mr. Caudle, do you remember being handed some papers by a black deputy sheriff?
A.: Yes.
THE COURT: Do you remember him coming?
A.: I wasn’t handed no papers.
THE COURT: Were you handed some papers by a black deputy named John Macklin?
A.: Yes, but I am not for sure whether it was concerning this or not. I was handed some papers at school one time to come up here, but I can’t recall being handed nothing by no black deputy. I think I got them in the mail, or I wasn’t there when they got there. I only remember receiving one subpoena from here and another one at school.
THE COURT: He says that on August 7, 1979, he served these suit papers on you.
A.: I don’t remember.

The factual dissimilarities in the Tuscaloosa Warehouse case and this case are readily apparent. In Tuscaloosa Warehouse, a motion to set aside the default was filed within 29 days of the judgment, but was not presented to the trial court within 30 days of the rendition of the judgment. The motion in the instant case was filed eleven months after the judgment. The trial court could well have concluded that the defendant contumaciously ignored the sheriff’s process until a “rock” had been placed on his pay, at which time he sought relief from the court. Furthermore, what looked like a meritorious defense — a brother using defendant’s car for his own purpose, although with defendant’s permission — on close examination turns out to be a case where the defendant may have instructed the brother to transport the cousin to Decatur in his car. If the insurance company’s version of the case had been presented to and been believed by a jury, and legal negligence proven, the jury would have been bound to bring in a judgment against the defendant.

The long and short of the matter is that all of these considerations must have coalesced in the mind of the trier of fact when he decided to deny the motion to set aside the default. It is this delicate sifting and weighing of facts that the trial court is so uniquely equipped to handle. We cannot, and will not, set aside that judgment unless it is palpably wrong and in this case we are not convinced that it is. The judgment is due to be affirmed.

AFFIRMED.

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

FAULKNER, J., dissents.

      . These considerations are not new. They have been dealt with in AAA Sewing Machine Co. v. Shelby Finance Co., 384 So.2d 126 (Ala.Civ.App.1980); Howard v. Drinkard, 261 Ala. 555, 74 So.2d 704 (1954); Wiggins v. Tuscaloosa Warehouse Groceries, Inc., 396 So.2d 91 (Ala.1981).

      . The court treated his motion as a Rule 60(b) motion because under Rule 55(c), A.R.C.P., the motion must be presented to and acted upon by the trial judge within 30 days of the default judgment. The movant had filed the motion within 29 days and in time, but had failed to present it to the trial judge for his action until more than 30 days had passed after the rendition of the judgment.

      .Ground (6) specifies “any other reason justifying relief from the operation of the judgment.”


author: ALMON, Justice.

text:
    Barton R. SCOTT v. Teresa D. SCHLOSSER.
    79-585.
    Supreme Court of Alabama.
    July 17, 1981.

      L. H. Little, Jr. of Berry, Abies, Tatum, Little & Baxter, Huntsville, for appellant.
    Patrick W. Richardson of Bell, Richardson & Herrington, Huntsville, for appellee.
   ALMON, Justice.

Barton Scott brought an action for personal injuries received as a result of the alleged negligent operation of a pickup truck driven by Teresa Schlosser, which collided with a motorcycle driven by Scott.

The defendant Schlosser pled the general issue and contributory negligence. The jury returned a verdict for the defendant and judgment was entered accordingly.

On a September morning, at approximately 3:00 a. m., the defendant, while driving her father’s pickup truck, turned left into the driveway of her home on Todd Mill Road in Huntsville, Alabama. Scott, coming from the opposite direction on a friend’s motorcycle, struck the truck broadside as it crossed his lane. Both Scott and Patty McQueen, who was riding with him on the motorcycle, were injured.

Scott’s suit was consolidated with a suit by the owner of the motorcycle, Charles Hopper. The jury verdict was for Hopper on the property claim and for the defendant on Scott’s personal injury claim.

Two of the jury instructions given by the trial court concerning the contributory negligence defense are the subject of this appeal. The court instructed the jury that the violation of certain traffic laws would amount to negligence as a matter of law and proceeded to read some of these laws to the jury, after cautioning them that such reading was “no indication that they have been violated or that any such violation, if any violation there be, proximately caused or proximately contributed to the injur jes complained of by the Plaintiffs.” The court told the jury that they were to determine from the evidence whether the laws had been violated and, if so, whether such violation was a proximate cause of or proximately contributed to the accident.

The statutes in question are Code 1975, § 32-5-170, and Code 1975, § 32-5-91(b)(4). In the court’s words, the former provides that, “It shall be unlawful for any person who is intoxicated to drive a motor vehicle upon any highway of this state,” and the latter, that

“Subject to the provisions of subsection (a)” [concerning “a careful and prudent speed”] which I have just read to you of this section, “and except in those instances where a lower speed is specified, it shall be prima facie lawful for the driver of a vehicle to drive the same at a speed not exceeding the following, but in any case when such speed would be unsafe it shall not be lawful.” And in connection with that, one of the subdivisions, one of the portions having to do with that is as follows: “Fifteen miles an hour in traversing or going around curves or traversing a grade upon a highway when the driver’s view is obstructed within a distance of one hundred feet along such highway, in the direction in which he is proceeding.” (Emphasis added).

Scott contends that there was no evidence in the case either that he was intoxicated or that the stretch of road he was traversing immediately prior to the accident was such as to invoke the operation of § 32-5-91(b)(4).

On neither of these points can we say that there was no evidence at all, or that the evidence was incontrovertible in' Barton’s favor, or that the jury was misled. As to the intoxication, Scott himself testified that he had three beers during the evening: two during the Alabama-Nebraska football game which he watched at a friend’s apartment from 8:00 p. m. until it finished, and one during the approximately four-hour period which he spent socializing with friends at a bar called the Gathering Spot. Although Patty testified that she did not see Scott drinking during this period, officer Cain, who investigated the accident, testified that Patty told him at the scene “that they had been drinking.”

Finally, evidence concerning the accident itself might reasonably indicate that Scott’s intoxication proximately contributed to the accident. Scott testified that he saw Teresa begin to turn into his lane when he was about 100 feet away, yet the skid marks of his motorcycle were only about twenty-five feet long and led toward the driveway. It would be reasonable to infer that his reactions in putting on the brakes were slowed and that his judgment was impaired, in that he steered rightward into the turning truck, not leftward around the back of it.

As to the sight distance along the road, there was much evidence, both testimony and photographs, concerning the stretch of Todd Mill Road in the vicinity of the Schlos-sers’ house. The evidence clearly shows that the driveway itself is in a curve. The dispute is over Scott’s view as he approached this curve. Scott asserts that, looking from the driveway to the south, one can see for 750 feet. Whether this is true or not, it misses the point. The question is not what his view had been back down the road, but what it was immediately prior to the accident. In other words, should he have been slowing down as he entered the curve?

The road curved to Scott’ left, and the inside of the curve was overgrown with dense foliage which would have blocked his view of oncoming traffic for some distance at least. The jury might well have concluded that this curve, which begins at least 100 feet before the Schlossers’ driveway, created enough of a hazard to come under the intendment of the 15 mile per hour speed limit in question. In view of the considerable and conflicting evidence on this point, the trial court was justified in reading § 32-5-91(b)(4) to the jury.

Having found that the challenged instructions were not given in error, we hold that the trial court’s judgment is due to be, and it is hereby, affirmed.

AFFIRMED.

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


text:
    Roy J. NICAUD v. STATE of Alabama, ex rel. James A. HENDRIX, District Attorney, 28th Judicial Circuit. Robert COLLIER v. STATE of Alabama, ex rel. James A. HENDRIX, District Attorney, 28th Judicial Circuit. Jimmy Doyle GODWIN v. STATE of Alabama, ex rel. James A. HENDRIX.
    80-12, 80-61 and 80-133.
    Supreme Court of Alabama.
    July 17, 1981.

      James D. Brooks and Patricia K. Olney of Reams, Tappan, Wood, Vollmer, Philips & Killion, P.C., Mobile, for appellant Roy J. Nicaud.
    Thomas M. Haas and James M. Byrd, Mobile, for appellant Robert Collier and Jimmy Doyle Godwin.
    Charles A. Graddick, Atty. Gen., and Mark R. Ulmer and Deborah H. Biggers, Asst. Attys. Gen., for appellees.
   ADAMS, Justice.

These consolidated appeals come to us from the Circuit Court for Baldwin County. Nicaud, Collier, and Godwin appealed adverse judgments of the trial court ordering the condemnation and forfeiture of the “Ricky G.,” a shrimp boat, and one 1980 Ford pick-up truck. Nicaud and Collier, each fifty percent shareholders in the Ricky G., Inc., intervened in the proceeding against the boat. Godwin, owner of the pick-up truck, appeared in the proceeding against it. The Baldwin County district attorney had commenced equitable proceedings under Code 1975, § 20-2 — 93, to condemn and forfeit the boat and truck. The State alleged that the boat was used to transport marijuana, and that the truck was used to facilitate the transportation of marijuana. Forfeiture of the boat and truck was sought pursuant to Code 1975, § 20-2-93(a)(4). Nicaud, Collier, and God-win present several issues for our consideration in reviewing the propriety of the trial court’s decisions. We believe the issues concerning the alleged illegality of the war-rantless search and seizure of the “Ricky G.,” and the insufficiency of the evidence pertaining to the pick-up truck, control the disposition of these appeals. We will consider separately the cases involving the “Ricky G.” and the 1980 Ford pick-up truck.

I. “Ricky G.”

Collier contends that the trial court erred in denying his motion to suppress the evidence obtained as the result of the warrant-less search of the “Ricky G.” That search revealed the “Ricky G.” was loaded with approximately 7,000 pounds of marijuana. If the marijuana was obtained by an illegal search and seizure, we believe that it is properly excluded from a subsequent forfeiture proceeding. The rule has been stated to be:

The evidence in a proceeding for forfeiture of property used in connection with the violation of narcotics drug laws must be competent, relevant and material to be admissible, and evidence discovered during the course of a justifiable search of the vehicle which is the subject of the proceeding is admissible. Where the purpose of the forfeiture of the vehicle is deterrent in nature and there is a close identity to the aims and objectives of criminal law enforcement, the exclusionary rules applicable in criminal prosecutions should apply in forfeiture proceedings with respect to illegally seized evidence. [Footnotes omitted.]

28 C.J.S. Drugs & Narcotics Supplement § 145(b) (1974).

The forfeiture provisions in Code 1975, § 20 — 2—93, are clearly intended to be a deterrent to illegal drug dealing, and to aid the objectives of criminal law enforcement. The above-cited rule, providing for the exclusion of illegally seized evidence, properly applies to the instant case. Equity will not sanction the forfeiture of property based upon evidence obtained in violation of fundamental constitutional rights.

In reviewing the proceeding against the “Ricky G.,” we believe that the search and seizure conducted by the Baldwin County Sheriff’s Department was illegal under the 4th Amendment to the United States Constitution as made applicable to the states by the 14th Amendment. The trial court erred by denying the motion to suppress.

The alleged facts upon which the Baldwin County Sheriff’s Department relied in searching the “Ricky G.” are as follows. On February 9, 1980, at 11:30 p. m., Deputies Pierce and Davis of the Baldwin County Sheriff’s Department observed a car and a large truck pull into and drive behind Moesch’s Diesel Shop at the Intracoastal Waterway in South Baldwin County. A license tag number from the car was obtained, and it was learned that the car belonged to Hertz Corporation in Mobile. The deputies drove away, but returned one-half hour later. They found that both the car and truck had left, and there was a chain across the driveway where the vehicles had stopped. One of the deputies testified that he had never previously observed a chain across the driveway. The deputies then looked for the truck in other areas, but without success. They returned to the driveway at 3:00 a. m., February 10, 1980, and found the chain down. There were tire tracks of a truck leading from the driveway to the highway. After again looking elsewhere for the truck, the deputies abandoned their search and went home.

Later during the morning of February 10, 1980, Deputy Pierce went back to the driveway with Chief Deputy Anderson. They entered the driveway after removing the chain which was now up again. In the back they observed an imprint of the bow of a boat in the bank of the canal. They also observed some gloves and burlap bags on the ground. Upon leaving they noticed the “Ricky G.” at Moesch’s Shipyard, two or three hundred yards in the distance. The boat had not been there the previous night. Closer observation revealed the boat had mud on its bow matching the imprint seen earlier in the canal bank.

Surveillance of the “Ricky G.” was set up at 11:00 a. m. No one was seen at the boat. At 12:30 p. m., Chief Deputy Anderson and Deputy Pierce walked onto the gangplank of the boat and called out. Receiving no answer, they left without boarding. They then called Mr. Ervin Redding, shipyard foreman at Moesch’s, to come to the scene. Mr. Redding had no knowledge concerning the boat. The deputies accompanied Mr. Redding onto the “Ricky G.” at 1:30 p. m. On board, they found no one. In the course of looking through the boat, Mr. Redding discovered the marijuana upon opening the hatch to the hole. Mr. Redding and the deputies left. Surveillance was continued with arrests being made later that night.

At the outset, we note that there are six exceptions to the requirement for a search warrant. They are: plain view; consent; incident to a lawful arrest; hot pursuit or emergency situations; exigent circumstances coupled with probable cause; and, stop and frisk situations. Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973); Richardson v. State, 376 So.2d 205, 213 (Ala.Cr.App.1978), aff’d. 376 So.2d 228 (Ala.1979); Baker v. State, 340 So.2d 854 (Ala.Cr.App.1976). If the state is to come within any of the above exceptions, it must be the exception provided for exigent circumstances coupled with probable cause.

Probable cause cannot be founded upon mere suspicion. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); McCurdy v. State, 42 Ala.Cr.App. 646, 176 So.2d 53 (1965), cert. denied 278 Ala. 710, 176 So.2d 57 (1965). The United States Supreme Court in Brinegar observed:

“The substance of all the definitions” of probable cause “is a reasonable ground for belief of guilt.” . .. And this “means less than evidence which would justify condemnation” or conviction as Marshall, C. J., said for the Court more than a century ago in Locke v. United States, 7 Cranch 339, 348, 3 L.Ed. 364. Since Marshall’s time, at any rate, it has come to mean more than bare suspicion. Probable cause exists where “the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed. [Footnotes omitted.]

Brinegar, at 175-6, 69 S.Ct. at 1310-1311; Daniels v. State, supra.

Applying the standard required for probable cause, we do not believe that the activities observed by the deputies were sufficient to justify a search of the “Ricky G.” None of the activities observed, whether considered either individually or collectively, can allow one to reasonably believe that a crime was being committed. At the most, the incidents observed create mere suspicion. The deputies did not have occasion to observe any individual involved in the activities of that day or the previous night. They knew of no one’s identity who was involved in what they believed to be illegal activity. The deputies did not observe any evidence of marijuana either at the scene or in the large truck seen the night before the search. Prior to their entry aboard the “Ricky G.,” they observed nothing that could allow them to conclude the boat held marijuana. Even assuming that the burlap bags found on the bank can be connected with the “Ricky G.,” that fact does not help create probable cause. There are many legitimate uses of burlap bags, particularly in a nautical context. We note the following cross examination of Deputy Pierce that occurred at the hearing on the motion to suppress:

Q. Now, all this that you had seen, the car and the truck and the burlap bags and the chain being up when it wasn’t previously, that made you suspicious; didn’t it, Mr. Pierce?
A. Yes, sir.
Q. But you hadn’t seen any marijuana, had you?
A. No, sir.
Q. You didn’t know whether or not this might be that sort of situation, did you?
A. For sure, no, sir.
Q. So, you had seen a car down there at a later hour of the night?
A. (Nods head affirmatively.)
Q. You had seen an 18-wheeler truck at a later hour of the night?
A. (Nods head affirmatively.)
Q. And later in the daytime, you had seen some burlap bags there by the bank?
A. (Nods head affirmatively.)
Q. And you had seen an indentation in the shore that could have been made by a boat, but you didn’t know, didn’t have any evidence at that point of any marijuana; did you?
A. No, sir.
Q. So, with that fact situation, you did make some effort through [customs] to find out who owned this boat before you went aboard it?
A. Yes, sir.
Q. But you made no effort to get any kind of search warrant?
A. No, sir.
Q. And then, you and Mr. Anderson and Mr. Redding, you went aboard the boat and started looking around; is that right?
A. Yes, sir.
Q. Tell Judge Wilters what your purpose and intent was in going on the boat, Mr. Pierce.
A. Well, in my mind, there was enough reasonable suspicion on my part to believe that there was marijuana on the boat.
Q. So, you went aboard that boat for that purpose, to see?
A. Yes, sir.
Q. To see whether or not there was marijuana there?
A. Yes, sir, I did.
Q. And that was your reason for going on it?
A. Yes, sir.

Even in the absence of Deputy Pierce’s statement, we believe there is no articulable basis upon which probable cause could be said to exist. The facts speak for themselves, and they cannot be heard to say probable cause.

The state argues that the special expertise of a law enforcement officer in the area of illegal drug dealing should be considered in determining whether probable cause existed for a search and seizure. Although the state cites no cases on this point, we note that cases recognizing the principle that the special expertise of an officer may be considered in upholding probable cause usually deal with arrest and detention situations. Even there, probable cause is supported in situations where the officer has a greater quantum of knowledge than exists in the present case. Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) (noting principle but distinguishing it from a situation where suspect was illegally detained on basis he merely looked suspicious without any basis upon which to suspect misconduct); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) (recognizing principle, but holding illegal United States Border Patrol’s stopping of an automobile near the Mexican border because occupants appeared to be of Mexican ancestry); Christensen v. United States, 259 F.2d 192 (D.C.Cir.1958) (arrest and seizure upheld where officer acted upon personal observation of suspect’s activity and informant’s tip). In the instant case, regardless of whatever expertise the deputies may have possessed in the field of drug related crimes, there were insufficient objective facts that could be coupled with their expertise to result in probable cause.

Next, the state suggests that probable cause can be supplied by Mr. Red-ding’s allegedly independent discovery of the marijuana. The United States Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), remarked that the 4th and 14th Amendments do not afford protection against illegal searches and seizures by private citizens. However, where a private citizen acts as an agent of the police, the exclusionary rule applies. Coolidge. Whether one acted as an agent of the police is determined by a consideration of all the circumstances of the case. Coolidge, at 487, 91 S.Ct. at 2048. Considering all the circumstances of the case, we believe that Mr. Redding was an agent of the Baldwin County Sheriff’s Department. It is clear from the record that Mr. Redding did not discover the marijuana accidentally. He was called to the scene by the sheriff’s department after they had the “Ricky G.” under surveillance for nearly three hours. By their surveillance, the deputies already were aware there was no one on board the “Ricky G.” Upon Mr. Redding’s arrival at the scene, they accompanied him on board. Under these circumstances, we can conclude only that Deputies Pierce and Anderson were attempting to accomplish indirectly through Mr. Redding that which they could not do directly themselves. We, therefore, reject the state’s suggestion that Mr. Red-ding’s discovery of the marijuana can support a finding of probable cause.

Having concluded there was no probable cause to justify the search and seizure, it is unnecessary for us to consider the second requirement under this exception for a war-rantless search and seizure, namely, whether exigent circumstances existed. In view of our holding on this point, we pretermit discussion of the issues raised by the appeal of Nicaud v. State, because we deem this holding controlling in the disposition of the proceeding against the “Ricky G.”

II. One 1980 Ford Pick-up Truck

Defendant Godwin challenges the sufficiency of the evidence upon which the trial court ordered his pick-up truck condemned and forfeited. Godwin’s truck was seized the night arrests were made at the “Ricky G.” Testimony at trial established that in the early evening, Godwin’s truck was parked approximately two hundred yards from the “Ricky G.” Before the arrests were made, the “Ricky G.” was moved and came to rest four hundred yards from the defendant’s truck. When the Sheriff’s Department moved in to effect the arrests, some of the suspects ran toward Godwin’s truck. No marijuana was found on or near the truck, nor was the truck seen transporting any. Over defendant’s objections alleged hearsay testimony was admitted at trial to the effect that four of the suspects arrived at the scene in Godwin’s pick-up.

It is the state’s contention that the evidence was sufficient to show that the vehicle was used in some manner to facilitate the transportation of the marijuana. We disagree. The applicable statute provides:

(a) The following are subject to forfeiture:
(1) All controlled substances which have been manufactured, distributed, dispensed or acquired in violation of this chapter;
(2) All raw materials, products and equipment of any kind which are used or intended for use in manufacturing, compounding, processing, delivering, importing or exporting any controlled substance in violation of this chapter;
(3) All property which is used or intended for use as a container for property described in subdivisions (1) or (2) of this subsection;
(4) All conveyances, including aircraft vehicles or vessels, which are used or intended for use to transport or in any manner to facilitate the transportation for the purpose of sale or receipt of property described in subdivisions (1) or (2) of this subsection; . . .

Code 1975, § 20-2-93(a)(l-4).

In Reeder v. State, 294 Ala. 260, 314 So.2d 853 (1975), this court stated that forfeiture statutes, because of their penal nature, are subject to strict construction. This court declined to liberally interpret the predecessor of the instant statute to allow the seizure and forfeiture of money. Jackson v. Evans, 379 So.2d 1236 (Ala.1979). Recently, in Singleton v. State, 396 So.2d 1050 (Ala. 1981), we observed that a vehicle need not be loaded with drugs for transportation before it could be subject to forfeiture. In Singleton, we upheld forfeiture where the facts showed that the truck had backed up to the cargo door of an airplane that was carrying marijuana. There, the facts established that the truck was intended for use in the transporting of marijuana. The facts in Singleton are dissimilar to those of the instant case. Here, the facts show only that the seized pick-up truck was used to transport individuals involved with the marijuana to the scene. We do not believe that is enough to sustain a forfeiture of the vehicle, nor do we believe that such a use comes within the language of the forfeiture statute. We thus pretermit discussion of the other issues raised by the defendant and hold that the trial court was in error when it ordered the forfeiture and condemnation of the truck.

The judgment of the trial court is, therefore, reversed as to the proceedings against both the “Ricky G.” and the 1980 Ford pick-up truck, and the cause is remanded to the trial court with directions to order the release of them to their owners.

REVERSED AND REMANDED WITH DIRECTIONS.

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

       [Emphasis added.]


author: HOLMES, Judge.

text:
    Oscar D. DAVIS v. REDSTONE FEDERAL CREDIT UNION.
    Civ. 1835.
    Court of Civil Appeals of Alabama.
    Sept. 19, 1979.
    Rehearing Denied Oct. 17, 1979.

      William P. Burgess, Jr., Huntsville, for appellant.
    Currun C. Humphrey of Humphrey & Smith, Huntsville, for appellee.
    C. Stephen Trimmier, Birmingham, ami-cus curiae for Alabama Credit Union League.
   HOLMES, Judge.

The defaulting debtor appeals from a judgment of the Circuit Court of Madison County determining that federal credit unions are exempt from the provisions of the Alabama Consumer Credit Act (the Mini-Code), §§ 5-19-1 et seq., Code of Ala.1975.

Specifically, the debtor contends the trial court erroneously awarded an attorney’s fee of 20% of the unpaid balance of the loan upon which he had defaulted. We affirm.

The facts are as follows: The debtor obtained a loan of $2,000 from Redstone Federal Credit Union, signing a promissory note which incorporated a consumer disclosure statement. The note provided that, upon default, debtor would pay a reasonable attorney’s fee. Debtor later encountered financial difficulties, and finding himself unable to meet this obligation, defaulted. The fact of default was not disputed, and the trial judge awarded an attorney’s fee of 20% of the unpaid principal.

Debtor concedes this amount is a reasonable fee if the Federal Credit Union Act, 12 U.S.C.A. §§ 1751 et seq., applies since it does not regulate attorney’s fees. However, he contends the transaction was subject to the Mini-Code and § 5-19-10 thereof:

With respect to an original principal amount or original amount financed not exceeding $300.00, a consumer credit contract may not provide for payment by the debtor of attorney’s fees. With respect to larger amounts, the contract may provide for the payment by the debtor of reasonable attorney’s fees not exceeding 15 percent of the unpaid debt after default .... A provision in violation of this section is unenforceable.

Thus, the debtor, through able counsel, argues that the contract providing for “reasonable attorney’s fees” on the $2,000 loan is in violation of the statute and is therefore unenforceable.

The dispositive issue presented is whether the provisions of our Mini-Code controlling consumer credit transactions are applicable to federal credit unions created and organized by Congress. Put another way, we must decide whether Congress has preempted the field and legislated exclusively concerning such credit unions, removing them from state control.

At the outset, we note that this court has very recently held that the Mini-Code applies to credit unions organized pursuant to state law. McCartha v. Iron & Steel Credit Union, Ala.Civ.App., 373 So.2d 328 (1979). Finding no need to repeat in depth what was said there, we do acknowledge that the opinion contains broad language which could be read as extending said code’s coverage to federal credit unions. However, a state chartered credit union was involved in that case, and we hereby expressly limit its reach to such entities.

Such a reading of McCartha, supra, is supported by the also very recent legislative amendment to the Mini-Code’s definition of “creditor.” Section 5-19-1(3), Code of Ala. 1975, as amended by Act No. 79-428, 1979 Ala. Acts, Regular Session (approved July 19, 1979), reads in pertinent part:

The provisions of this chapter shall exclusively control the permitted activities and restrictions of any state-chartered credit union or its officers and directors to the extent that this chapter permits or proscribes any conduct; the provisions of this chapter being intended to preempt all existing legislation.

As is contended in an excellent amicus curiae brief filed in this case, it is a well settled principle of statutory construction that where a statute enumerates certain things on which it is to operate, the statute is to be construed as excluding from its effect all things not expressly mentioned. Geohagan v. General Motors Corp., 291 Ala. 167, 279 So.2d 436 (1973). In applying this doctrine, we note the legislature has seen fit to expressly include only state chartered credit unions. The clear implication is that federally chartered credit unions are to be left to the provisions of federal law.

In any event, we conclude that Congress has unmistakingly removed federal credit unions from any control by the states. In a case such as this, where a conflict arises between a state’s regulatory police powers and the powers of the federal government, we assume that state’s powers are not to be superseded by the relevant federal act unless such pre-emption was the clear and manifest purpose of Congress. Courts have recognized such intent may be either explicit, as when there is a pre-emption clause, or implicit. The latter occurs when the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it. Ray v. Atlantic Richfield Co., 435 U.S. 151, 98 S.Ct. 988, 55 L.Ed.2d 179 (1978).

Although there is no express preemption provision in the Federal Credit Union Act, 12 U.S.C.A. §§ 1751 et seq., such credit unions are placed under the administrative authority of the National Credit Union Administration. 12 U.S.C.A. § 1756. This agency’s board must report to Congress at least annually and “set forth such information as is necessary for the Congress to review the financial program approved by the Board.” 12 U.S.C.A. § 1752a(d). Regulations pertaining to the conduct of federal credit unions are found at CFR Tit. 12, C. 7, §§ 700.1 et seq.

We find in this extensive scheme sufficient indicia of the intent to pre-empt. Indeed, Judge Frank M. Johnson, now of the U. S. Court of Appeals for the 5th Circuit, while deciding the Federal Credit Union Act does not foreclose the legitimate exercise of a state’s legislative authority in a totally unrelated field, has recently recognized that the federal scheme is an obvious attempt to establish, regulate, and provide uniformity for federal credit unions. See, United States v. State of Alabama, 434 F.Supp. 64 (M.D.Ala.1977). Our sister state of Georgia has likewise held that the federal government has acted exclusively here, rejecting the argument that room is left for state legislation on the same subject. Christian v. Atlanta Army Depot Federal Credit Union, 140 Ga.App. 277, 231 S.E.2d 7 (1976).

The few courts that have confronted this problem have concluded federal credit unions are federal fiscal agents very similar to national banks. Christian, supra. They have therefore utilized the line of cases which hold that the states can exercise no control over national banks except insofar as Congress may permit. McAnally v. Ideal Federal Credit Union, Okl., 428 P.2d 322 (1967). See, Farmers’ & Mechanics’ National Bank of Buffalo v. Dearing, 91 U.S. 29, 23 L.Ed. 196 (1875). Since the Federal Credit Union Act, unlike certain portions of the National Bank Act, 12 U.S.C.A. §§ 21 et seq., does not contain any provisions allowing state control in a few narrowly circumscribed areas, the federal legislation prevails in all respects.

Finally, we reject appellant’s contention that the above referenced cases are distinguishable in that they involve explicit conflicts between the federal act and the various state legislative acts concerning maximum allowable interest rates. As there is no provision in the Federal Credit Union Act or in the regulations concerning attorney’s fees, appellant urges us to, in effect, “plug” our Mini-Code’s provisions into this purported gap.

In this instance, we conclude that the failure to set express limits on attorney’s fees results from the implicit determination that such action is not needed. Attorney’s fees, unlike interest rates, are subject to judicial control and are not a potential trap for the unwary borrower. When such considerations are present, courts have recognized that the failure of federal officials to completely exercise their regulatory authority in all possible spheres need not be interpreted to mean that room is necessarily left for state action. Such federal inaction can take on the character of a policy that no specific federal regulation is appropriate or approved under the federal statute in question. In such a situation, states are not necessarily permitted to use their police power to enact their own regulations to fill the purported void. Ray v. Atlantic Richfield Co., supra.

This case is due to be affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


author: PER CURIAM. PER CURIAM.

text:
    Ex parte Oscar D. DAVIS. (In re Oscar D. DAVIS v. REDSTONE FEDERAL CREDIT UNION.)
    79-96.
    Supreme Court of Alabama.
    Sept. 26, 1980.
    As Corrected on Denial of Rehearing Feb. 6, 1981.
    Rehearing Denied June 5, 1981.
    William P. Burgess, Jr. of Legal Services of North-Central Alabama, Inc., Huntsville, for petitioner.
    Currun C. Humphrey of Humphrey & Smith, Huntsville, for respondent.

      C. Stephen Trimmier of Trimmier & Hartman, Birmingham, amicus curiae.
   PER CURIAM.

This case involves the question of whether federal credit unions are exempt from the provisions of the Alabama Consumer Credit Act (the Mini-Code, §§ 5-19-1, et seq., Code 1975). Specifically, the issue is whether the Mini-Code’s provision which limits recovery of attorney’s fees to 15% of the unpaid debt will apply to a federal credit union loan. The Alabama Court of Civil Appeals, in Davis v. Redstone Federal Credit Union, 401 So.2d 49 (Ala.Civ.App., 1979), held that the Mini-Code was preempted by the extensive federal regulations which govern federal credit unions. We reverse.

The doctrine of preemption has its application when both state and federal statutes and regulations seek to operate in the same area or to govern the same activity. Preemption is traditionally applied in the following circumstances: When state regulation has been expressly prohibited by Congress, Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed.2d 1447 (1947); when Congress has “unmistakably ordained,” either expressly or implicitly, that federal regulations alone will govern an area or activity, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963); or when the state regulations either conflict with or create an obstacle to the accomplishment of a valid congressional purpose, Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). We will discuss each circumstance as it applies to the facts in the instant case.

The statutory framework creating federal credit unions is both extensive and detailed. See 12 U.S.C. §§ 1751, et seq. Provisions for the creation, organization, operation and liquidation of credit unions have been established. Additionally, procedures for converting state credit unions to federal credit unions, and vice versa, have been outlined. Nowhere in those regulations, however, is there any provision which expressly prohibits state regulation of federal credit unions. Therefore, the application of the Alabama Mini-Code to federal credit unions cannot fall on that basis.

The issue of whether Congress has “unmistakably ordained” that federal regulations alone will govern federal credit unions is similarly disposed of. Clearly, as in the case of an express prohibition, Congress has not expressly ordained that the federal law alone will control. Whether Congress has implicitly ordained that result depends upon the scope of the regulations and the interests or purposes they advance; it has been stated that preemption is in order when “[t]he scheme of federal regulation [is] so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it”, or when “the Act of Congress [touches] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject” Rice v. Santa Fe Elevator Corp., supra, 331 U.S. at 230, 67 S.Ct. at 1152.

The stated purpose for a federal credit union is the promotion of “thrift among its members and [the creation of] a source of credit for provident or productive purposes.” 12 U.S.C. § 1752(1). This is identical to the stated legislative purpose for those credit unions chartered under the laws of Alabama, Code 1975, § 5-17-1, as well as other states. See, e. g., La Caisse Populaire Ste. Marie v. United States, 563 F.2d 505, 509 (1st Cir. 1977); State v. Price, 168 Ohio St. 499, 156 N.E.2d 316, 318 (1959). The promotion of thrift and the creation of sources of credit for productive purposes are interests of great concern on both local and national levels. These concerns are greatest, however, in the local community where the credit union operates as it is within that community that the fruits of the credit union’s operation will be distributed and have their greatest and most direct impact. Because of this significant local interest, we find that the Federal Credit Union Act does not create a circumstance for implicit preemption as the Act does not regulate an activity in which there is a “dominant” federal interest to justify the preclusion of all state regulation.

As we have noted, the statutory framework establishing federal credit unions is both detailed and extensive. That fact alone, however, does not give rise to the “inference that Congress left no room for the States to supplement it.” Quite to the contrary, the court in United States v. State of Alabama, 434 F.Supp. 64 (M.D.Ala.1977), found that the provisions of the Alabama Uniform Disposition of Unclaimed Property Act could be applied to records held by a federal credit union. The court in that action stated:

That Congress did not have such a purpose [of preempting all state regulation] in mind when it adopted the Federal Credit Union Act is evident from an examination of the Act. Not only is there lacking a preemptive section as in other acts (e. g., Emergency Petroleum Allocation Act of 1973, 15 U.S.C. § 751 et seq.), the Federal Credit Union Act specifically authorizes the states to act within this sphere. Title 12, Section 1771, United States Code, provides the procedure whereby a federal credit union may convert to a state credit union, and vice versa. A fortiori, the federal act does not preclude the states from operating in other areas traditionally left to their control. Therefore, this is not a situation where Congress has “unmistakably ... ordained” that its acts alone will regulate a given area of commerce. See Florida Lime and Avocado Growers, Inc. v. Paul, supra.

434 F.Supp. at 67.

The most persuasive evidence that Congress did not intend to preempt all state regulation of federal credit unions is found in the most recent amendments to the Federal Credit Union Act. Regulations concerning the interest rates chargeable by a federal credit union are set out in two sections. Section 1757 outlines the general powers of federal credit unions; Subsection (5)(A)(vi) provides that, without special authorization, the maximum interest a credit union may charge on a loan to a credit union member may not exceed fifteen per centum. Section 1785 set out those regulations applicable to insured credit unions. Subsection (g)(1), pertaining to interest rates, provides:

If the applicable rate prescribed in this subsection exceeds the rate an insured credit union would be permitted to charge in the absence of this subsection, such credit union may, notwithstanding any State constitution or statute which is hereby preempted for the purposes of this subsection, take, receive, reserve, and charge on any loan, interest at a rate of not more than 1 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal Reserve bank in the Federal Reserve district where such insured credit union is located or at the rate allowed by the laws of the State, territory, or district where such credit union is located, whichever may be greater.

The crucial provisions pertaining to this section are contained in the section setting forth the effective dates of the amendment, where it is stated:

The amendments made by [Section 1785(g)(1)] ... shall apply only with respect to loans made in any State during the period beginning on April 1,1980, and ending on the date, on or after April 1, 1980, on which such State adopts a law or certifies that the voters of such State have voted in favor of any provision, constitutional or otherwise, which states explicitly and by its terms that such State does not want the amendments made by [Section 1785] to apply with respect to loans made in such State, except that such amendments shall apply to a loan made on or after the date such law is adopted or such certification is made if such loan is made pursuant to a commitment to make such loan which was entered into on or after April 1, 1980, and prior to the date on which such law is adopted or such certification is made. (Emphasis added.)

Depository Institutions Deregulation and Monetary Control Act of 1980, Pub.L.No. 96-221, § 525, 94 Stat. 132 (1980). This amendment allows the states, in limited circumstances, to have some voice in the interest rates charged by a federal credit union and, most importantly, indicates that Congress never intended to totally preempt all state regulation of the subject matter.

Although we find that the most recent amendments to the Federal Credit Union Act evince a congressional intent not to foreclose all forms of state regulation, our inquiry does not end there. As the United States Supreme Court has stated:

Even if Congress has not completely foreclosed state legislation in a particular area, a state statute is void to the extent that it actually conflicts with a valid federal statute. A conflict will be found “where compliance with both federal and state regulations is a physical impossibility ...” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 [83 S.Ct. 1210, 1217, 10 L.Ed.2d 248] (1963), or where the state “law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67 [61 S.Ct. 399, 404, 85 L.Ed. 581] (1941); Jones v. Rath Packing Co., supra [430 U.S. 519], at 526, 540-541 [97 S.Ct. 1305 at 1310, 1316-1317, 51 L.Ed.2d 604], Accord, De Canas v. Bica, 424 U.S. 351, 363 [96 S.Ct. 933, 940, 47 L.Ed.2d 43] (1976).

Ray v. Atlantic Richfield Co., 435 U.S. 151, 158, 98 S.Ct. 988, 994-95, 55 L.Ed.2d 179 (1978).

We find no actual conflict between statutes in the present case: the Alabama Mini-Code limits the amount of attorney’s fees recoverable in loan default actions, and the Federal Credit Union Act does not address the issue of attorney’s fees. Nor do we find that the application of the Mini-Code creates an obstacle to the accomplishment of the objective of promoting thrift and creating sources of credit, both of which are the fundamental purposes for federal credit unions.

Based upon the foregoing analysis, we find that the provisions of Alabama’s Mini-Code limiting attorney’s fees are not preempted by the Federal Credit Union Act and that those specific limitations are applicable to loans made by federal credit unions. Therefore, the decision of the Court of Civil Appeals is due to be reversed.

REVERSED AND REMANDED.

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

ON REHEARING

PER CURIAM.

OPINION CORRECTED; APPLICATION OVERRULED.

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

      . “The term ‘insured credit union’ means any credit union the member accounts of which are insured in accordance with the provisions of title II of this Act.” 12 U.S.C. § 1752(6). According to the provisions of 12 U.S.C. § 1781, all federal credit unions must be insured in accordance with the provisions of the Act. Therefore, by definition, all federal credit unions are “insured credit unions” and are subject to those regulations pertaining to insured credit unions.


text:
    Oscar D. DAVIS v. REDSTONE FEDERAL CREDIT UNION.
    Civ. 1835.
    Court of Civil Appeals of Alabama.
    July 1, 1981.

      William P. Burgess, Jr., Huntsville, for appellant.
    Curran C. Humphrey of Humphrey & Smith, Huntsville, for appellee.
   HOLMES, Judge.

The prior opinion of this court, Ala.Civ. App., 4Ó1 So.2d 49, has been reversed and remanded by the Supreme Court, 401 So.2d 52. On remand to this court, and in compliance with the Supreme Court’s opinion of September 26, 1980, this case is now reversed and remanded.

REVERSED AND REMANDED.

WRIGHT, P. J., and BRADLEY, J., concur.


author: BRADLEY, Judge. HOLMES, Judge,

text:
    STATE of Alabama v. PERFECT SUBSCRIPTION COMPANY, INC.
    Civ. 2033.
    Court of Civil Appeals of Alabama.
    May 28, 1980.
    Rehearing Denied June 25, 1980.
    Charles A. Graddick, Atty. Gen., Herbert I. Burson, Jr., Chief Counsel, Dept, of Revenue, and Asst. Atty. Gen., B. Frank Loeb, Asst. Counsel, Dept, of Revenue, and Asst. Atty. Gen., for appellant.
    M. R. Nachman, Jr., of Steiner, Crum & Baker, Montgomery, for appellee.
   BRADLEY, Judge.

The appellant, State of Alabama, appeals from a lower court holding in favor of Perfect Subscription Company, Inc. (hereinafter referred to as “Perfect” or “taxpayer”), the appellee in this case. We reverse.

The Department of Revenue of the State of Alabama (hereinafter referred to as “State”) entered three final assessments against Perfect for use taxes in the amounts of $4,204.17 for county use tax; $7,966.73 for city use tax; and $29,851.87 for state use tax. The actions were consolidated and submitted to the Montgomery County Circuit Court on appeal. The lower court reversed the assessment finding, that the sales of magazine subscriptions by Perfect to the various Alabama schools were wholesale sales and therefore not subject to the use tax. The State filed a timely appeal from this judgment.

The evidence reveals that Perfect is a Delaware corporation which operates out of its principal office in New Jersey. Perfect enters into contracts with persons designated as “franchisees.” These franchisees call upon the various schools in Alabama and present fund-raising programs through student sales of magazine subscriptions.

Perfect provides all the materials and forms needed for the drive which include student sales booklets, student order forms, remit (summary) reports, and collection envelopes.

The record shows that in the sales booklet, the magazines represented by Perfect are listed, as well as the prices and special offers provided for a specific period of time.

Sixty percent of the sales price is normally received by Perfect. Perfect sends forty percent to the school after the remit audit confirms the records.

There are three copies of the order form, consisting of a white one (original) which is sent to Perfect, a yellow one which is retained by the school or school organization, and a pink one which is given to the subscriber. On the back of the subscriber’s form it is stated that if full service is not received by the customer, Perfect will refund the money for any undelivered portion of the order. Perfect’s address is given, as well as the person to whom inquiries should be directed, and the purchaser of the subscription is particularly admonished not to contact the school about the subscription.

The issue before this court is whether the magazine subscription sales constitute retail or wholesale sales to Alabama subscribers through school students.

The trial court concluded that Perfect had made wholesale sales which were not subject to the use tax. The relevant statutory definition of a wholesale sale is found in § 40-23-60(4)a, Code of Alabama 1975:

a. A sale of tangible personal property by wholesaler to licensed retail merchants, jobbers, dealers or other wholesalers for resale and does not include a sale by wholesalers to users or consumers, not for resale;

The trial court relied upon State v. Monk & Associates, Inc., 57 Ala.App. 303, 328 So.2d 306 (1976) for its decision. In that case we found that candy sold to schools for resale in fund-raising projects constituted wholesale sales. However, our reason for holding that the sale of candy to the schools was not taxable was because § 40-23-2, Code of Alabama 1975, exempts such sales by schools from the sales tax.

Perfect contends that Monk controls the present case as there was a sale of magazine subscription rights to the schools. We find Monk to be distinguishable. In Monk the candy was sold to the schools and the schools were responsible for remitting an agreed-upon percentage of the proceeds of the sale price if the candy was not returned. In other words, even if candy was not sold, but was stolen, lost or destroyed, the schools were still responsible for paying for the candy. In addition, in Monk there were no franchisees overseeing the fund-raising as there was in the case at bar. The record indicates that the Perfect franchisees would make frequent calls on the schools and instruct the students, as well as furnishing materials and supplies. Perfect supplied the student salesmen with order forms for the subscriptions which stated that Perfect would refund a subscriber’s money for any undelivered portion of a subscription order. The form provided by Perfect also requested that a subscriber not contact the school. We think it evident that Perfect exercised a great deal more control over the sale of magazine subscriptions than did the wholesaler of the candy in Monk. Therefore we think the instant case to be governed by Quality School Plan, Inc. v. State, 53 Ala. App. 418, 301 So.2d 183, cert. den., 293 Ala. 771, 301 So.2d 187 (1974) instead of Monk.

In Quality we held that the sale of subscription rights through student salesmen were retail sales and were therefore not exempt under the statute. The facts in Quality are nearly identical to the case at bar. Representatives of Quality would go to the various schools and promote the sale of magazine subscriptions to be used as a fund-raising device. The schools could earn money by selling subscriptions through student salesmen. Quality furnished the schools with all the necessary forms and materials. All orders for subscriptions to magazines would be sent to Quality. The schools would send Quality the agreed-upon percentage of the subscriptions sold and retain the balance of the sales price. The copy of the order form given the subscriber also provided that all inquiries concerning the subscriptions should be directed to Quality. The only possible factual distinction between Quality and Perfect is that Perfect referred to its employees who called on the schools as “franchisees” whereas Quality called such employees “representatives.” However, we would note that the trial court found in its findings of fact that it was Perfect that sold magazine subscriptions to the schools. We think the trial court obviously concluded that there was little difference between a Perfect franchisee and a Quality representative. We would agree.

Another case involving the question of whether magazine subscriptions should be treated as a retail or wholesale sale was State v. MacFadden-Bartell Corp., 280 Ala. 386, 194 So.2d 543 (1967). In that case our supreme court held that MacFadden-Bar-tell, a New York corporation, was not liable for use tax on sales of magazine subscriptions made in Alabama through EBSCO, an Alabama company located in Birmingham. The court noted that EBSCO was not paid a commission on the sales it made and had not solicited orders for MacFadden-Bartell. The court stated that EBSCO solicited business for a profit and if it were not for the very nature of magazine subscriptions, the merchandise bought by EBSCO could have been shipped to it for later retail sales just as any other merchandise might be.

In Quality we distinguished MacFadden-Bartell by pointing out, as the court had, that EBSCO was operating its own separate business and that MacFadden had no agents or salesmen in the state, nor did it have any contacts with EBSCO other than through the mails; whereas Quality had two resident full-time employees in Alabama plus the student salesmen. The same distinctions apply to Perfect. Perfect has agents or franchisees in Alabama, and as noted previously, has a great many contacts other than through the mail.

Based on the foregoing, we think the present facts to be factually dissimilar from Monk and MacFadden-Bartell. Rather, we consider the instant case to fit squarely within the holding in Quality. We therefore hold that the sales of magazine subscriptions by Perfect are not exempt from use tax under the appropriate statutes. Accordingly, the judgment of the trial court is reversed.

The trial court’s judgment recites that the several constitutional issues raised at trial were not ruled on by the trial court due to its conclusion that the magazine subscription sales were wholesale sales. Consequently, the cause is remanded so that the trial court can consider and rule on the constitutional issues which were properly presented to it.

REVERSED AND REMANDED WITH INSTRUCTIONS.

WRIGHT, P. J., concurs.

HOLMES, J., concurs in the result.

HOLMES, Judge,

concurring specially:

I concur in that Quality, supra, is controlling. I do not necessarily agree with the analysis of this court’s holding in Monk.


author: PER CURIAM.

text:
    Ex Parte: PERFECT SUBSCRIPTION COMPANY, INC. (Re: STATE of Alabama v. PERFECT SUBSCRIPTION COMPANY, INC.)
    79-731.
    Supreme Court of Alabama.
    July 10, 1981.
   PER CURIAM.

WRIT QUASHED AS IMPROVIDENTLY GRANTED — NO OPINION.

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

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

EMBRY, J., not sitting.


author: BRADLEY, Judge.

text:
    James Robert BERRY v. UNITED INSURANCE COMPANY OF AMERICA, a corporation; Vulcan Life and Accident Insurance Company, a corporation; and Sidney R. Rawls.
    Civ. 2322.
    Court of Civil Appeals of Alabama.
    Dec. 17, 1980.
    Rehearing Denied Jan. 28, 1981.
    Griffin Sikes of Tipler, Fuller & Sikes, Andalusia, for appellant.
    Harold Albritton of Albrittons & Givhan, Andalusia, for appellees United Ins. Co. of America and Sidney R. Rawls.
    Samuel H. Franklin and Scott M. Phelps of Bradley, Arant, Rose & White, Birmingham, for appellee Vulcan Life Ins. Co.
   BRADLEY, Judge.

This is an insurance case.

On October 13, 1961 Mr. James Robert Berry bought a non-participating industrial policy from Vulcan Life and Accident Company. The policy provided benefits for death, loss of sight, dismemberment loss by accidental means or hospital confinement and surgery caused by sickness or accident. The policy was renewable weekly at the option of the company. The weekly premium was seventy-five cents, which was personally collected by an agent of the insurer. At the time he bought the policy Berry was fifty-one years of age.

The policy contained the following provision under the section entitled “insurable ages”:

This Policy is issued only for ages next birthday two through fifty-five, and shall not cover any person past the Policy anniversary after the Insured’s having attained age sixty-five; and any premium, less any benefits drawn, paid to the Company for any period not covered by this Policy will be returned to the Insured upon request.

On April 10,1975 Berry became sixty-five years old and the next anniversary of the policy was October 13, 1975. Rawls, as agent for Vulcan and later as agent for United Insurance, continued to collect the weekly premium from Berry through January 8, 1979, i. e. after Berry reached age sixty-five.

At all times Berry had a copy of the policy in his possession. However, at no time prior to trial did Berry read the policy. At no time was Berry told by any representative of Vulcan or United that he would be covered by the policy after he reached sixty-five years of age.

On October 29, 1976 Vulcan entered into an agreement with United Insurance Company of America whereby Vulcan sold all rights, title, and interest it had in certain insurance policies to United. Included in this sale was the policy Vulcan sold to Berry. Vulcan also terminated its agency relationship with Mr. Sidney R. Rawls, who remained as agent for United.

Berry entered the hospital on November 14, 1978 and remained until November 17, 1978. Berry filed a claim for benefits under the insurance policy. The policy provided for hospital benefits of $10.00 per day. The evidence shows that Berry contacted Rawls about filing this claim and Rawls supplied Berry with one of United’s claim forms. This form was filled out and signed by Berry on November 20, 1978. Berry took this form to the hospital where it was completed on December 28, 1978. Berry assigned all benefits under the policy to the hospital when he signed the claim form.

The evidence showed that United received the claim form on January 15, 1979. On January 31, 1979 United forwarded a check in the amount of $30.00 to the hospital. On February 1, 1979 the hospital received the check from United. The affidavit of Joe Brooks, the assistant hospital administrator, stated that he received a check in the amount of $30.00 from United dated January 31, 1979 and this payment was credited to the account of James R. Berry. This is the correct amount due under the policy.

After Berry filed the claim form with the hospital he discussed payment of the claim with Rawls, the agent of United. The evidence as to the date of this conversation appears to be sometime in December 1978 or January 1979. At this time Rawls reportedly told Berry his claim would not be paid. He also told Berry the premiums paid on the policy since October 13, 1975 would not be refunded.

On July 20, 1979 Berry filed suit against Vulcan, United, and Rawls seeking damages of $1,000,000 under a claim of fraud and misrepresentation. Berry says that the insurance companies continued to collect premiums on the policy after he had reached age sixty-five, thus impliedly representing that the policy remained in force when in fact it was not in force. Berry further says that the insurance companies knew the policy was not in force and never intended to pay the claim. This, he says, constituted fraud.

Defendants answered by denying any fraud or misrepresentation on their part. United denied that the claim had not been paid and admitted that it owed $96.00, /. e. the difference in the premiums Berry had paid since October 13, 1975 less the benefits he had received.

All defendants filed motions for summary judgment in March 1980. These motions were based on the pleadings, answers to interrogatories, the deposition of Berry and the affidavits of three other persons.

On March 20, 1980 the court granted the motion for summary judgment in favor of Berry and against United for the sum of $96.00 and court costs and in favor of all defendants for all amounts claimed in excess of $96.00 and court costs. Berry thereafter moved to set aside the summary judgments, which motion was denied and Berry appealed.

Appellant contends here that the trial court committed reversible error by granting summary judgments in favor of defendants. He says that the insurer’s acceptance of the premiums after he reached age sixty-five is, in and of itself, proof of the insurer’s intent to defraud him. That is, the policy clearly provides that it is no longer in effect after the insured reaches age sixty-five; hence the acceptance of a premium after age sixty-five clearly shows an intent to defraud. Appellant further says that the subsequent payment by the insurer of the amount claimed as benefits under the policy is not a defense to an action for fraud. In support of this position, appellant relies on the case of Old Southern Life Insurance Co. v. Woodall, 295 Ala. 235, 326 So.2d 726 (1976) for the statement:

[W]hen one issues a policy of insurance, and accepts the premium therefor, there is an implied, if not express, promise to perform the act, i. e., honor valid claims made thereunder. If such promise is made with a present intent not to perform, this amounts to a fraudulent misrepresentation.
We agree with appellant that the mere failure to perform is not itself evidence of an intention not to perform. Something more is required ....
. .. Absent some proof that there was something more than a failure to pay the claims, something upon which the jury could infer that at the time the policy was issued that the company had no intention to honor the claims, it was error to submit this claim to the jury.

The facts in the cited case show that the insurer had denied two claims made by the insured on the ground that the claims had arisen before the policy became effective when in fact the insurer had information at the time the claims were denied that would have permitted it to cancel the policy. But the supreme court said that failure to pay a claim is not in and of itself evidence of an intent not to pay a claim. Something more than mere failure to pay a claim is required. The court then said that possession of information at the time the first claim was denied that would have permitted the insurer to cancel the policy was evidence from which the trier of fact could have found that the insurer fraudulently induced the insured to continue paying premiums on a policy under which it had no intention of paying claims.

Although there is dispute in the evidence in the case at bar as to whether the claim was paid and whether the premiums were returned, the failure to pay the claim and repay the premiums would not alone be evidence of an intent not to pay. Something more is required.

The insured’s answer to this conclusion is that acceptance of the premiums from him after he reached sixty-five is, in and of itself, evidence of an intent not to pay claims under the policy and nothing more is required. With this position we disagree because we believe something more is required to prove intent to defraud in a case such as the one at bar.

To determine whether there was something more in the way of proof of an intent to defraud, we carefully searched the record and have been unable to find any evidence that would permit an inference that the insurer collected premiums from the insured after his sixty-fifth birthday with an intent not to pay claims. Absent such proof the trial court properly granted summary judgment.

AFFIRMED.

HOLMES, J., concurs.

WRIGHT, P. J., concurs in the result.


text:
    Ex Parte: James Robert BERRY. (Re: James Robert BERRY v. UNITED INSURANCE COMPANY OF AMERICA, et al.).
    80-320.
    Supreme Court of Alabama.
    July 10, 1981.
   PER CURIAM.

WRIT QUASHED AS IMPROVIDENTLY GRANTED — NO OPINION.

TORBERT, C. J., and FAULKNER, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

MADDOX, J., not sitting.


text:
    Ollie ESTES et al. v. Harold NIX et al.
    Civ. 2438.
    Court of Civil Appeals of Alabama.
    March 18, 1981.
    Rehearing Denied April 15, 1981.
    John E. Enslen of Reneau, Enslen & Re-neau, Wetumpka, for appellants.
    W. Stephen Graves, Montgomery, for ap-pellees.
   ON REHEARING

HOLMES, Judge.

The original opinion in this cause dated February 11, 1981, is withdrawn and the following is substituted therefor.

' This is a fraud case.

Harold and Bobby Nix sued Ollie Estes. The complaint contained two counts, the first alleging fraudulent misrepresentation and the second fraudulent concealment. Estes moved for a directed verdict on both counts. The motion was denied. The trial court submitted the case to the jury on both theories and the jury returned a general verdict in favor of Harold and Bobby Nix in the amount of $3,000. Estes appeals and we reverse.

The dispositive issue is whether the trial court erred in denying Estes’ motion for directed verdict.

The record reveals the following facts:

Estes is the owner of a service station. Since 1968 Estes has rented this station to a number of tenants on a month to month basis. Each tenant operated the station as his own business and purchased gasoline and oil from Estes.

In 1977, Mr. and Mrs. Kennedy, the stepfather and mother of Harold and Bobby Nix, took over the operation of the station. The Kennedys paid rent to Estes and purchased gasoline and oil from him.

On August 21, 1979, the Nix brothers, Harold and Bobby, purchased the service station business from the Kennedys for $8,000. The purchase included the station’s inventory and various items of equipment. The Nix brothers had to borrow money to finance the purchase of the business.

After assuming operation of the station, the Nix brothers paid rent to Estes and purchased gasoline and oil from him.

The Nix brothers vacated the station in October, 1979, under threat of eviction by Estes.

On September 6, 1979, while the station was occupied by the Nix brothers, Estes executed a written lease of the station to Larry Farmer. The execution of this lease led to the termination of the Nix brothers’ tenancy in the station.

At trial Bobby Nix testified, without objection, that on September 14,1979, Farmer came to the station and told the Nix brothers and Mrs. Kennedy that he and Estes had been negotiating the lease of the station for two or three months.

As indicated above, the Nix brothers alleged fraudulent misrepresentation and fraudulent concealment in this complaint. These allegations arise from a purported telephone conversation between Mrs. Kennedy and Estes on August 15, 1979. Mrs. Kennedy testified that she called Estes on behalf of the Nix brothers to secure his approval of the Nix brothers as tenants. She testified to the effect that she informed Estes of the planned sale of the business and of the Nix brothers’ need to borrow money. She also testified, without objection, that Estes had approved of the Nix brothers as tenants.

The Nix brothers’ charge of fraudulent misrepresentation is based on the allegation that Estes, in the above mentioned telephone conversation, told Mrs. Kennedy that the Nix brothers could rent the station indefinitely. However, at trial Mrs. Kennedy testified that Estes had never said the Nix brothers could rent the station indefinitely. Further, Bobby Nix testified that he had never been told that he and his brother could rent the station indefinitely and that he had just assumed that they could do so.

With respect to the charge of fraudulent concealment, the Nix brothers alleged that after having been informed of the Nix brothers’ plan to borrow money and purchase the business, Estes failed to disclose to them his plans to lease the station to Larry Farmer.

At the close of all the evidence Estes moved for a directed verdict specifying as one ground the failure of the Nix brothers to produce a scintilla of evidence to show that Estes represented to them that they could occupy the station indefinitely. As stated above, the motion for directed verdict was denied. Estes appeals from the denial of this motion.

It is well established that in order to maintain an action for fraudulent misrepresentation there must be, among other things, a false representation. Roberts v. Carroll, Ala., 377 So.2d 944 (1979).

The Nix brothers alleged that Estes falsely represented to them that they would be allowed to rent the station indefinitely. However, as stated above, Bobby Nix and his primary witness, Mrs. Kennedy, testified that Estes did not in fact make the purported misrepresentation.

There being no evidence to substantiate the existence of a material element of the Nix brothers’ claim for false misrepresentation, Roberts v. Carroll, supra, we find that the trial court erred in overruling Estes’ motion for directed verdict on that claim. See, United States Fidelity & Guaranty Co. v. Jones, Ala., 356 So.2d 596 (1977).

As stated above, the trial court submitted the case to the jury on both counts, fraudulent misrepresentation and fraudulent concealment. The jury returned a general verdict which did not state the count upon which the verdict was based. Because the jury could have founded its verdict upon an unproven claim, the case must be reversed. Smith v. Smith, Ala., 384 So.2d 1069 (1980); Shelter Modular Corp. v. Cardinal Enterprises, Inc., Ala., 347 So.2d 1334 (1977); Old Southern Life Ins. Co. v. Woodall, 295 Ala. 235, 326 So.2d 726 (1976), appeal after remand, 348 So.2d 1377 (1977); Chandler v. Hunter, Ala.Civ.App., 340 So.2d 818 (1976).

In view of the above, other issues raised by Estes are pretermitted.

The case is due to be reversed.

REVERSED AND REMANDED. APPLICATION FOR REHEARING GRANTED.

WRIGHT, P. J., and BRADLEY, J., concur.


text:
    Ex parte Harold NIX and Bobby Nix. In re Ollie ESTES, et al. v. Harold NIX, et al.
    No. 80-491.
    Supreme Court of Alabama.
    July 10, 1981.

      W. Stephen Graves, Montgomery, for petitioner.
    John E. Enslen of Reneau, Enslen & Re-neau, Wetumpka, for respondent.
   PER CURIAM.

Under Alabama law, if a complaint contains a claim for relief that is supported by the evidence and one that is not, the defendant must challenge the claim not supported by the evidence by way of a motion for directed verdict, specific to the claim not supported by the evidence, and setting out the grounds for such motion with specificity. See, Chandler v. Hunter, 340 So.2d 818 (Ala.Civ.App.1976); Nashville, C. & St. L. Ry. v. Farell & Bradley, 14 Ala.App. 380, 70 So. 986 (1915). Otherwise, if both claims go to the jury, and if a general verdict is returned, the court will presume that the verdict was rendered on the valid claim. Thrasher v. Darnell, 275 Ala. 570, 156 So.2d 922 (1963); Holley v. Crow, 355 So.2d 1123 (Ala.Civ.App.1978); Bank of Huntsville v. Witcher, 336 So.2d 1384 (Ala.Civ.App.1976). Because defendant’s motion for directed verdict was specific as to the misrepresentation claim, alleging that plaintiffs failed to produce even a scintilla of evidence of misrepresentation, the Court of Civil Appeals’ reversal of the judgment, 401 So.2d 62, was proper, and there is no need for the writ of certiorari to issue.

WRIT DENIED.

TORBERT, C. J., and MADDOX, FAULKNER, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.