author: FAULKNER, Justice. TORBERT, Chief Justice TORBERT, Chief Justice

text:
    Harold F. THOMAS and Janet Ann Thomas, v. STATE of Alabama.
    80-159.
    Supreme Court of Alabama.
    Oct. 2, 1981.
    Rehearing Denied Feb. 5, 1982.
    John H. Lavette, and Bibb Allen of London, Yancey, Clark & Allen, Birmingham, for appellants.
    Thomas Coleman of Whitmire, Coleman & Whitmire, and G. William Noble of Barnett, Tingle, Noble & Sexton, Birmingham, for appellee.
   FAULKNER, Justice.

This is an appeal from a jury verdict and judgment awarding the Thomases $150,000 in damages in an eminent domain proceeding. We reverse and remand for a new trial.

In constructing Interstate Highway 20 between Birmingham and Atlanta, it was necessary for the State of Alabama to acquire .16.04 acres from a 33-acre tract owned by the Thomases. The State had the land appraised by two appraisers. One appraised the difference in the market value before and after taking the land to be $142,417 — the other’s appraisal was $43,308. After State and Federal authorities reviewed these two appraisals, the State wrote to the Thomases on August 24, 1977, saying “our studies indicate that you are due $142,417 as just compensation for the right of way needed and we are, therefore, making this offer to you.” The offer was later updated to $144,350. The Thomases rejected the offer.

On October 4, 1977, the State filed an application to condemn in the Probate Court of Jefferson County, Alabama. A board of three commissioners was appointed by the court to determine what sum was just compensation for the land. The commissioners awarded $200,500 to the Thomas-es. The State appealed to the Circuit Court of Jefferson County, demanding a trial by jury on the issue of valuation of the condemned property.

Before the parties introduced any evidence at trial, the judge commented several times to the jury that the State believed $144,350 to be just, fair and adequate compensation. The jury assigned a value to the property of $150,000. The Thomases made a motion for a judgment notwithstanding the verdict, or, in the alternative, a motion for a new trial. The trial court denied these motions and entered a judgment in accord with the jury verdict.

The Thomases assign several points as error. Nevertheless, the principal issue is whether the trial judge erred in commenting to the jury that the State believed $144,350 to be adequate and just compensation for the property of the Thomases. The resolution of this issue is dispositive; therefore, we need not reach the other issues. We hold that the comments of the trial judge constitute reversible error and remand the cause for a new trial.

The Fifth and Fourteenth Amendments of the United States Constitution guarantee that the Government, State or Federal, will not deprive a citizen of private property without “just compensation.” Almota Farmer’s Elevator & Warehouse Co. v. United States, 409 U.S. 470, 93 S.Ct. 791, 35 L.Ed.2d 1 (1973). Just compensation refers to the “full monetary equivalent of the property taken.” Id. Government statements of just compensation to landowners represent the amount the Government believes the landowner is entitled to under the constitution. United States v. 320.0 Acres of Land, 605 F.2d 762, 825 (5th Cir. 1979). Such a statement is a “good faith assessment of what the owner is constitutionally due, made by one authorized ... to make that very statement.” Id.

The State is not “free to play fast and loose with landowners — telling them one thing in the office and something else in the courtroom.” Id. Because of the constitutional restraints on the State in dealing with landowners, we adopt the position taken by the Fifth Circuit that statements of just compensation are not admissible at trial unless the State first attempts to establish a lower valuation for the property. United States v. 320.0 Acres of Land, 605 F.2d 762, 824-825 (5th Cir. 1979). If the State attempts to establish a lower value, the statements are admissible at a compensation trial as an admission by the State. Nevertheless, the State is entitled to explain why it believes the statement of just compensation to be inaccurate. Any other rule would permit the State to make several appraisals, all lower than the value of the property, and force a landowner to accept one of those appraisals for fear that a lower value will be asserted by the State in court. The Constitution of the United States requires that the State deal with the landowner in a fair, honest and above board manner. The State, for the public good, may not coerce private landowners into taking less than fair and adequate compensation for their property. Permitting the landowner to dispute the State’s contention of a lower value will serve as a limited check on the broad powers of the State in condemnation proceedings.

The trial judge, before the opening statements of the attorneys, told the jury that the State believed its statement of compensation, $144,350, to be fair and adequate compensation for the property of the Thom-ases.

Evidence of the $144,350 statement of just compensation was not admissible unless and until the State attempted to establish a lower valuation. United States v. 320.0 Acres of Land, 605 F.2d 762 (5th Cir. 1979). Therefore, the trial judge’s making of statements concerning the State’s beliefs of just compensation before any evidence was introduced is error. Cf. Rule 51, ARCP (stating that a judge shall not express his opinion of the evidence). Eaton v. State, 278 Ala. 224, 177 So.2d 444 (1965).

We reverse and remand for a new trial.

REVERSED AND REMANDED.

ALMON, EMBRY and ADAMS, JJ., concur.

TORBERT, C. J., concurs specially.

TORBERT, Chief Justice

(concurring specially).

I concur in the result because I believe the trial judge should not have commented to the jury that the State believed $144,-350.00 to be just, fair and adequate compensation prior to the introduction of that figure by either of the parties. The just, fair and adequate compensation for property in an eminent domain proceeding should be established only through evidence presented by the parties involved. The jury must reconcile the various opinions of value as best it can, analyzing the evidence in light of its common knowledge. Rountree Farm Co. v. Morgan County, 249 Ala. 472, 31 So.2d 346 (1947).

On Rehearing

TORBERT, Chief Justice

(concurring specially on denial of rehearing).

As I stated in my original special concurrence with the majority opinion, the trial judge should not have placed any property value before the jury. While I am sure the action by the trial judge was not meant to prejudice either party, it did become evidence for the jury to consider and results in this reversal and remand for new trial.

The original opinion also establishes some guidelines for the trial court to follow upon consideration of United States v. 320.0 Acres of Land, 605 F.2d 762 (5th Cir. 1979). All these guidelines say is that if or when the State attempts through expert testimony to establish a lower value than the pretrial offer for the property involved, the landowner can use the pre-trial offer made by the State as an admission by the State in order to impeach the evidence of lower value.

Naturally, the State could come to trial and establish its pre-trial offer as just compensation and defend this value by showing the evolvement of the offer, thus establishing before the jury that its actions were accomplished in good faith.

This Court recognizes the frustrations of the parties and their desire to have this matter resolved. However, we must decide the case on issues which are determined to be dispositive. I concur in denial of the application for rehearing.


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    J. W. CASEY v. Mildred J. JONES.
    80-276.
    Supreme Court of Alabama.
    Dec. 11, 1981.
    Rehearing Denied Feb. 19, 1982.

      James W. Garrett, Jr. of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellant.
    Jere L. Beasley of Beasley & Wilson, Montgomery, for appellee.
   JONES, Justice.

This is a contract action based on an alleged “oral listing” agreement to sell real estate. On several occasions, and over a period of years, Defendant had listed property with Plaintiff under an oral agreement giving Plaintiff permission to list, show, and sell property from which Defendant would receive a “net” amount and Plaintiff would receive a commission. Up to the time of this transaction, Plaintiff had sold a total of 67.5 acres for Defendant and had obtained the net amount required by Defendant on each sale.

The property which is the basis of this action is a 2,600-acre tract of timberland near Tuskegee, Alabama, known as the Huddleston-Wadsworth tract. During a trip to see another piece of land, Defendant pointed out the Huddleston-Wadsworth property to Plaintiff. The parties’ versions of the events following Plaintiff’s introduction to the Huddleston property are completely contradictory. Plaintiff maintains that Defendant informed her that, even though the property was tied up in an option, he would give her an oral, nonexclusive listing on the property with an asking price of $600 per acre and a “bottom” sales price of $550 per acre; and, although Defendant wanted a net of $550 per acre, there was no agreement of nonpayment of commission if the property sold for $550 per acre. A Georgia real estate salesman, with whom Plaintiff had a subagency agreement, obtained Georgia-Pacific as a prospect for the Huddleston Property.

Plaintiff maintains that 1) Defendant specifically authorized her to show the Hud-dleston property at the expiration of the option; 2) she supplied Georgia-Pacific with maps and other information relating to the property supplied to her by Defendant; 3) Defendant told her to go ahead with the sale to Georgia-Pacific; and 4) although it was mutually agreeable that Georgia-Pacific concluded its negotiations through a third party, Defendant continued to agree to pay Plaintiff a 5% commission if the land sold to Georgia-Pacific.

Subsequent to these negotiations, but pri- or to the final sale, Defendant withdrew all authority from Plaintiff to list any of his property or to “show, sell or take any action in connection with any of his land.” Plaintiff responded with a letter reminding Defendant that she and her sub-agent had procured Georgia-Pacific as a prospective buyer and that, if the property ultimately sold to Georgia-Pacific, Defendant owed them the 5% commission on the sale. After the sale, Plaintiff instituted this action against Defendant.

The jury returned a verdict for the Plaintiff and judgment was entered. Defendant’s motion for a new trial was granted. A second jury trial and verdict for Plaintiff resulted in the verdict’s being set aside on Defendant’s motion for a new trial because of improper jury argument. A third trial resulted in a jury verdict for the Plaintiff and judgment was entered thereon. Defendant’s motion for a new trial or J.N.O.V. was denied. Defendant appeals.

Appellant states the “Issues Presented for Review” as follows:

“I. Was the verdict of the jury in favor of Mildred Jones against J. W. Casey against the weight and preponderance of the evidence?
“II. Did the trial Court err in Denying Defendant’s motion for directed verdict, motion for new trial, and motion for judgment notwithstanding the verdict following the third trial of this matter?
“HI. Did the Court err in failing to grant Defendant’s motion for judgment notwithstanding the verdict or for new trial for the reason that there was not sufficient credible evidence to support the jury’s verdict?”

This appeal challenges the propriety of the trial court’s orders denying the Defendant’s respective motions for a directed verdict and a J.N.O.V., or, alternatively, for a new trial. The only issues, then, are 1) sufficiency of the evidence, and 2) weight of the evidence. We affirm.

We premise our analysis of the issues on certain familiar, and generally well understood, rules of judicial and appellate review. The standard of judicial review for testing a motion for directed verdict is identical to that for testing a motion for J.N. O.V. Evidence sufficient to take the case to a jury as against a motion for directed verdict is likewise sufficient to withstand a motion for J.N.O.V. Citing 5A Moore’s Federal Practice ¶ 50.07[2], this Court in Hanson v. Couch, 360 So.2d 942, 944 (Ala.1978), stated:

“A motion for judgment notwithstanding the verdict tests the sufficiency of the evidence in the same way as does the motion for directed verdict at the close of all the evidence. Ala.R.Civ.P. 50, Committee Comments. Granting the motion for judgment notwithstanding the verdict says, without weighing the credibility of the evidence, there can be but one reasonable conclusion from the evidence as to the proper judgment.”

A clear statement of the test is found in Herston v. Whitesell, 374 So.2d 267, 270 (Ala.1979):

“[Ujnder our system, the jury must be allowed to pass on the evidence if any, no matter how slight, is offered which, if believed, would support a verdict in favor of the party against whom a directed verdict is sought.”

In the instant case, not only did the jury find the factual issues in favor of the Plaintiff, but the jury in each of two prior trials had arrived at the same verdict. The first verdict was set aside and a new trial ordered on the weight of the evidence ground. The second verdict was set aside on an improper argument of counsel ground, and the third jury verdict withstood Defendant’s post-judgment motions.

While a post-judgment motion for a new trial invokes a different standard from that standard applicable to a motion for a directed verdict, or post-judgment motion for J.N.O.V., the overruling of a motion for a new trial, just as where successive juries reach the same verdict, strengthens the presumption of correctness of such a jury verdict. Long v. Bankers Life and Casualty Company, 294 Ala. 67, 311 So.2d 328 (1975).

For the sake of clarity, we restate the familiar: Other than objections to admissibility, evidentiary challenges are divided into two separate and distinct categories: 1) sufficiency of the evidence, raised by motions for directed verdict and for J.N. O.V. and measured by the objective “scintilla” rule; and 2) weight and preponderance of the evidence, raised by motion for a new trial and measured by the more subjective “palpably wrong, manifestly unjust” standard.

A post-judgment motion for J.N. O.V. must be predicated upon alleged error of the trial court in failing to grant a pre-judgment motion for directed verdict, the test of each challenge being the same. A post-judgment motion for a new trial, grounded on a claim that “the verdict is against the great weight and preponderance of the evidence,” should be granted only in extreme cases, when to let the verdict stand, though supported by some evidence, would be palpably wrong and manifestly unjust.

After a careful review of the record in this case, we are convinced that the evidence of record amply supports the judgment appealed from; and we are unwilling to say that the judgment appealed from is clearly wrong and manifestly unjust.

AFFIRMED.

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

      . This is not to say a trial judge should not exercise his discretion to overrule a directed verdict motion and then re-examine the sufficiency of the evidence issue on a post-trial J.N.O.V. motion. Experience tends to support the wisdom of such a practice, particularly in a close case.

      . Except that the motion for a new trial following the second jury verdict was based upon a ground other than sufficiency of the evidence, the third jury verdict would have invoked Code 1975, § 6-8-104, which provides: “No more than two new trials can be granted the same party in any cause of action.” For a case interpreting and applying this Code section, see Liberty National Life Insurance Company v. Trammell, 37 Ala.App. 204, 67 So.2d 41, cert. denied 259 Ala. 508, 67 So.2d 45 (1953).

      . For a good discussion of the varying standards for testing a motion for a new trial on the one hand and a motion for J.N.O.V. on the other, see Chavers v. National Security Fire and Casualty Company, Inc., 405 So.2d 1 (Ala.1981). See, also, Garmon v. King Coal Co., Inc., 409 So.2d 776 (Ala.1981).


author: BEATTY, Justice.

text:
    CITY OF DAPHNE v. Will G. CAFFEY, Jr. and Marie T. Caffey.
    80-499.
    Supreme Court of Alabama.
    Dec. 23, 1981.
    Rehearing Denied Feb. 19, 1982.

      Floyd C. Enfinger, Jr. of Lacey & En-finger, Fairhope, for appellant.
    Norborne C. Stone, Jr. of Stone, Partin, Granade & Crosby, Bay Minette, for appel-lees.
   BEATTY, Justice.

Defendant City of Daphne appeals from a decree adverse to it in an action brought by the plaintiffs alleging negligence and nuisance, and requesting both damages and injunctive relief. The case was tried to a jury which returned a verdict awarding no damages but from which the trial court found the City of Daphne “responsible for correcting drainage problems in the Magnolia Avenue and Old County Road area.”

The gist of the plaintiffs’ allegations was that the City negligently, wilfully or wantonly drained or diverted collected surface waters through its system of ditches or culverts so as to proximately cause damage to the plaintiffs’ real property. Following an evidentiary hearing and the jury verdict, the trial court entered a decree incorporating certain findings of fact. Among these were the facts that the City of Daphne maintained two culverts which channeled collected waters across the plaintiffs’ property nearby without an easement therefor, that the City had created these problems, and that the City’s conduct constituted a continuing trespass and a private nuisance. The decree enjoined the City from collecting or diverting surface waters in a manner allowing them to flow onto plaintiffs’ property, directed the City to install within six months structures to prevent such drainage, and directed the City to show cause why such structures could not be completed in six months if that proved to be the case within four months from the date of the decree. Jurisdiction was retained, and costs were taxed to the defendant.

The plaintiffs have moved to dismiss this appeal on jurisdictional grounds, maintaining that the trial court failed to dispose of the first post-trial motion within 90 days of its filing, and therefore this appeal was untimely, computing the 42-day requirement of Rule 4, ARAP, from the end of the 90-day period. Rule 4(a)(3), ARAP. The defendant, however, does not join issue with that position, but contends that its appeal is based upon its second motion to vacate judgment under Rule 60(b)(6), and inferentially that its notice of appeal from the trial court’s order denying the Rule 60(b)(6) motion was filed in accord with the time requirements for taking an appeal.

The defendant’s second motion to vacate judgment

moves this Court under Rule 60(b)(6) to relieve the defendant ... from the entry of Judgment made by this Court in this action. As grounds for said motion the defendant claims that the Judgment is not authorized by the evidence nor by the verdict of the jury.... [Emphasis added.]

Under Rule 60(b), ARCP,

the court may relieve a party or his legal representative from a final judgment ... for the following reasons: ... (6) any other reason justifying relief from the operation of the judgment.... A motion under this subdivision does not affect the finality of the judgment or suspend its operation....

The only issue on an appeal from the denial of a Rule 60(b) motion is whether the trial court abused its discretion in denying the motion. See Maddox v. Druid City Hospital Board, Ala., 357 So.2d 974 (1978). The issue upon review, then, concerns only the order of denial and does not involve the correctness of the underlying judgment itself. American Home Assurance Co. v. Hardy, Ala., 378 So.2d 710 (1979); Cockrell v. World’s Finest Chocolate Co., Ala., 349 So.2d 1117 (1977).

It can readily be observed that here the defendant’s appeal from the denial of its Rule 60(b)(6) motion is not an attack on the order of denial itself but upon the merits of the judgment, since the motion attacks only the evidence and the jury verdict. Thus the defendant is in effect utilizing Rule 60(b) as an appeal from the final judgment, which is not permitted under our rules. Rule 60 is not a substitute for an appeal. Marsh v. Marsh, Ala.Civ.App., 338 So.2d 422 (1976). The defendant’s argument is that the trial court was not authorized to find a continuing trespass because none was pleaded and the jury was not instructed on the law of trespass. Moreover, the defendant argues that, under the jury verdict, the trial court was not authorized to find that a nuisance had been maintained by the City and thus it was error to enjoin the City. We must respectfully point out that each of these contentions could have been raised by way of appeal. The record discloses that at the conclusion of the evidence the defendant moved for a directed verdict as to each alleged cause of action. That motion was granted as to the plaintiffs’ count of wanton conduct and denied as to all others. Such an attack upon the evidence could have been preserved by a motion for judgment N.O.V. and then later by appeal, see Great Atlantic & Pacific Tea Co., Inc. v. Sealy, Ala., 374 So.2d 877 (1979), and questions concerning the propriety of jury charges, as well as the correctness of the jury verdict, could have been presented by appeal as well. The defendant did not choose to file a motion for a new trial or for a J.N.O.V. or an appeal, however, but only a Rule 59(e) motion to vacate judgment, not now insisted upon, and a Rule 60(b) motion. Again, we must reiterate that the denial of the latter motion “does not bring up for review on appeal the correctness of the judgment which the movant seeks to set aside, but [the appeal] is limited to deciding the correctness of the order from which he appeals.” Hardy, supra, quoting Raine v. First Western Bank, Ala., 362 So.2d 846 (1978).

Rule 60(b)(6) is an extreme remedy to be used only under extraordinary circumstances. Gallups v. United States Steel Corp., Ala.Civ.App., 353 So.2d 1169 (1978), and

is not for the purpose of relieving a party from free, calculated, and deliberate choices he has made. A party remains under a duty to take legal steps to protect his own interests. In particular, it ordinarily is not permissible to use this motion to remedy a failure to take an appeal. [Wright and Miller, Federal Practice and Procedure, § 2864 at 214-15.]

Since the defendant’s use of the Rule 60(b)(6) motion was an attack upon the evidence and the jury verdict, it was a substitute for an appeal and a use not-authorized by that rule. Thus we have no alternative but to affirm the judgment of the trial court.

The judgment is affirmed.

AFFIRMED.

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


text:
    Norman F. SMITH v. AETNA INSURANCE COMPANY, a corporation, Kenneth A. Lebel, individually and d/b/a Ken’s General Store.
    80-675.
    Supreme Court of Alabama.
    Dec. 23, 1981.
    Rehearing Denied Feb. 19, 1982.
    Joseph J. Boswell, Mobile, for appellant.
    Michael Gillion and Edward L. Lasseter, Jr., of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellees.
   BEATTY, Justice.

This is an appeal under a Rule 54(b) certification from an order dismissing a counterclaim for damages and attorney’s fees. We reverse and remand.

Kenneth Lebel purchased a business property, Ken’s General Store located at Theodore, from Norman Smith. Smith retained a real estate mortgage on the property. Lebel procured casualty insurance aggregating $30,000 coverage on the property and contents from Aetna Insurance Company, this policy providing that Smith, the mortgagee, would be a loss payee.

The property was damaged in September 1979 by Hurricane Frederic. Lebel made a claim for $8,304.12 on the policy and in due course Aetna issued a draft to Lebel in that amount. Smith was not named as a payee contrary to the policy provisions. Apparently not all of the funds paid by Aetna were applied to the repair of the property and a dispute arose between Lebel and Smith concerning the condition of the restored property. Ultimately Aetna filed a petition for a declaratory judgment and other (equitable) relief, including restitution, against Lebel, Smith and fictitious parties claiming interests in the property.

Smith’s answer contained, inter alia, a counterclaim against Aetna alleging that Aetna’s payment draft had contravened the terms of the policy by not naming Smith as a loss payee and that Lebel had not used the proceeds of that draft for repairs to the insured building. Smith also claimed $2,000.00 as a reasonable attorney’s fee in the rendition of his services to Lebel.

Aetna moved to dismiss Smith’s counterclaim against it on the grounds that:

1. The counterclaim failed to state a claim upon which relief might be granted; and

2. The counterclaim failed to allege that the mortgage payments owed by Lebel to Smith were in default, and failed to allege that Smith’s collateral had been impaired as a result of the breaches by Aetna and Le-bel. This motion was granted by the trial court which dismissed Smith’s counterclaim against Aetna.

The principal issue before us is whether Smith’s counterclaim states a claim upon which relief may be granted. Stated in another way, under Smith’s allegations could he prove any set of facts which would entitle him to relief?

Neither of Aetna’s arguments is tenable here. Although we have not been furnished a copy of the loss payable clause itself, we may presume for the purposes of this decision that the terms of the commonly used New York Standard Mortgage Loss Payable clause were present in the policy in question. The pertinent language of that clause recites:

[A] Loss, if any, under this policy, shall be payable to the mortgagee .. . named on the first page of this policy, as interest may appear .... [Nationwide Mut. Fire Ins. Co. v. Wilborn, 291 Ala. 193, 279 So.2d 460 (1973).]

In Wilborn, supra, this Court quoted from Continental Ins. Co. of N.Y. v. Rotholz, 222 Ala. 574, 133 So. 587 (1931) concerning the nature of this loss payable clause:

“... the New York Standard clause operates to create a separate and independent insurance of the mortgagee’s interest in the property, and his acquisition of title to the insured property is generally regarded as an increase of interest rather than a change of ownership.” (Emphasis added)

Thus, as Rotholz pointed out, satisfaction of the mortgage debt before suit itself, by foreclosure or otherwise, did not preclude recovery by the mortgagee under the policy where the loss occurred after satisfaction of the mortgage debt, the loss payable provision having the effect “of transferring the payment of the proceeds in the event of a fire loss to the owner where the mortgagee has foreclosed prior to the loss.” Wilborn, supra 291 Ala. at 197, 279 So.2d 460.

In a situation in which the mortgagee’s interest in the property has not ripened into complete title and where the loss precedes foreclosure, Wilborn, at 198, 279 So.2d 460 recognized that

the mortgagee has an election as to how he may satisfy the mortgage indebtedness by two different means. He may look to the insurance company for payment as mortgagee under the New York Standard [Loss Payable] Mortgage clause and may recover, up to the limits of the policy, the full amount of the mortgage debt at the time of the loss. In this event he would have no additional recourse against the mortgagor for the reason that his debt has been fully satisfied.... [Emphasis added.] [Citing Aetna Ins. Co. v. Baldwin County Building & Loan Assn., 231 Ala. 102, 163 So. 604 (1935).]

In Baldwin, the mortgagee had foreclosed and purchased the insured property after a fire loss, and later sued the insurance carrier whose policy contained the New York Standard clause. It was held in that case that a mortgagee who recovered full satisfaction of his debt after the loss, whether by foreclosure or otherwise, forfeited his right to recover under the insurance policy, but no such forfeiture resulted from satisfaction before the loss. This result was explained in Wilborn at 198, 279 So.2d 460 as follows: “at the time of, and immediately after the fire loss, the plaintiff-mortgagee is the creditor of the owner, the plaintiff-mortgagee having had security for that debt in the form of a mortgage on the property and a claim for the loss on the insurance policy.” Wilborn established this general rule at 291 Ala. 199, 279 So.2d 460:

[T]his loss payee clause affords protection of the mortgagee as his interest may appear before or after foreclosure or other methods of change of ownership or title or other mediums of increased ownership of the mortgage property and the insurance follows the property; the exception to this general rule being that if the mortgage indebtedness is fully satisfied after loss by foreclosure or otherwise, then the insurance company is no longer liable to the mortgagee.

In the case before us we do not have a foreclosure situation or one in which the mortgagee has otherwise obtained the title. There is an allegation in Aetna’s complaint referring to a fictitious party who “proposes” to purchase the property. We do have a situation in which the insurance carrier concedes the existence of the loss payable clause, that a loss occurred, and that it issued a draft for a certain sum of money as settlement of the insured’s claim. Now the insurance carrier insists that further recovery from the company on the part of the loss payee-mortgagee would give him a double recovery because, as the insurer argues, the insured states that all of the damage has been repaired. What this argument overlooks is that the carrier’s payment to the mortgagor, under the terms of the policy, was not payment to the mortgagee as its interest might appear. That interest is yet to be resolved and cannot be resolved by allowing the insurer to avoid its contractual obligation to the mortgagee because of a mistake it made in executing the payment draft.

To Aetna’s argument that the mortgagee’s counterclaim did not allege that the mortgagor’s payments were overdue and that the mortgagee’s collateral had been impaired, it is only necessary to quote the general rule as expressed in 45 C.J.S. Insurance § 919 (1946) at 1026:

The mortgagee’s right to recover under an insurance [policy] covering his interest, or payable to him as his interest may appear, is not reduced or lessened by the fact that he has other security for the payment of the mortgage debt remaining after the destruction of the insured property, or by the fact that the property in its damaged condition is more than sufficient to pay the mortgage debt, or by the fact that the mortgagor has restored the insured property to as good a condition as it was in before the loss.

The result we reach in this case accords with the general principle that under these circumstances the rights of the parties are fixed as of the time of the damage, Pink v. Smith, 281 Mich. 107, 274 N.W. 727 (1937); see also Kintzel v. Wheatland Mut. Ins. Assn., Iowa, 203 N.W.2d 799 (1973). The mortgagee protected by the loss payable clause is not affected by an adjustment of or agreement on the loss between the insured and the insurer without his knowledge or consent. See Annot. 1111 A.L.R. 697. And under the liberalized requirements of notice pleading, Rule 8, ARCP, the mortgagee’s counterclaim against the insurer here was sufficient upon which to proceed under the principles discussed herein.

Because the counterclaimant, Smith, has not raised or argued the issue of attorney’s fees, which he claimed in his counterclaim against Aetna, we need not address that issue.

It follows from what we have stated that the order granting the insurer’s motion to dismiss the mortgagee’s counterclaim must be, and is, reversed and remanded.

REVERSED AND REMANDED.

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


author: BEATTY, Justice. SHORES, Justice JONES, Justice

text:
    Sherry CONLEY v. HARRY J. WHELCHEL CO., et al.
    80-338.
    Supreme Court of Alabama.
    Feb. 5, 1982.
    Stephen D. Heninger of Hare, Wynn, Ne-well & Newton, Birmingham, for appellant.
    John M. Laney, Jr., of London, Yancey, Clark & Allen, Lyman H. Harris and Judy Carol Whalen of Lorant, Harris & Yearout, Birmingham, for appellee Harry J. Whel-chel Co.
   BEATTY, Justice.

Appellant, Sherry Conley, appeals from a grant of summary judgment against her by the Circuit Court of Jefferson County in her action to recover damages for personal injury. We affirm.

Appellant was injured when her hair became caught in the unguarded parts of a grain auger which was being operated by her husband, Ricky Conley. At the time of the incident, Ricky was working part-time as a farmhand for W. A. Beavers, the owner of the auger.

On December 6, 1979, appellant filed suit for the injuries she suffered against L. H. Chandler and the Harry J. Whelchel Company, the distributors of the auger, Lear Siegler, Inc., the manufacturer of the auger, and Curtis Machine Co., Inc. The trial court granted a motion for summary judgment in favor of Curtis Machine Co., Inc. That order is not a part of this appeal.

Mr. Beavers, who is not a defendant in this action, had a farm insurance policy with South Carolina Insurance Company and that company employed General Adjustment Bureau (G.A.B.) to adjust any claims under the policy. One of G.A.B.’s adjusters, Peter D. Lenhart, contacted appellant and her husband about the accident. The possibility of settling any claim which might arise between appellant and Mr. Beaver’s insurance company was discussed. One of Mr. Lenhart’s reports about the meeting specifically mentioned that a covenant not to sue might be obtained from appellant in return for an agreed upon settlement amount.

On January 2, 1980, approximately one month after this action was filed, Mr. Len-hart settled the appellant’s claim against Mr. Beavers for $15,000.00 plus $500.00 in medical benefits. In consideration for that amount, appellant and her husband were asked to sign a form release and they did. The release was not read to appellant, though appellant was given the opportunity to read it for herself; however, it was explained by Mr. Lenhart, according to his deposition, in this manner:

I explained to them that this was a full release for settlement of all claims in regard to the injury that Mr. Beavers would be responsible for.
Q. All right. Did you, at any time, tell them or advise them in any way that they were settling all claims against any party whatsoever that could have been responsible for Sherry’s or his injuries?
A. That was not discussed.

Appellant and her husband testified that they were informed that the release covered only Mr. Beavers. The form which Mr. Lenhart took to the appellant’s home, however, was a general release with broad language that exceeded Mr. Lenhart’s explanation of the extent of the settlement. The appellees in this case, Lear Siegler, Inc., Harry J. Whelchel Co. and L. H. Chandler, claiming the release is a bar against any claims involving appellant’s injuries sustained on November 4, 1979, filed motions for summary judgments in their behalf. The trial court granted the motions on February 6, 1981, and stated that it found that the “release releases all parties jointly or severally liable to the plaintiffs.” It is from this order that Sherry Conley appeals.

Both sides agree that pursuant to Code of 1975, § 12-21-109, the “release ... must have effect according to the intention of the parties." Appellant claims that the release must be viewed in light of the circumstances surrounding its execution and that the intention of the parties was to effect a pro tanto settlement rather than a full and complete satisfaction of appellant’s claim against all parties. Appellant relies upon Miles v. Barrett, 223 Ala. 293, 134 So. 661 (1931), for the proposition that a release given and accepted under mutual mistake of fact may be avoided. That rule of law is true, however, appellant is not asking this Court to void the release in question. Instead, she requests that the release be held not to apply to appellees except insofar as it pro tanto reduces any obligations they might be found to have in regard to appellant’s claim. That remedy, however, is not available for the reasons that follow.

The release in question states that Mr. Beavers is released from all liability in connection with appellant’s accident and that “any and all other persons ... whether herein named or referred to or not, and who ... may be jointly or severally liable to the undersigned” are also released. The trial court found that the release “clearly releases the subject defendants, the wording and the meaning of the words are neither complex nor misleading. There is no ambiguity in its terms.” We agree. In the absence of fraud, a release supported by a valuable consideration, unambiguous in meaning, will be given effect according to the intention of the parties to be judged from what appears within the four corners of the instrument itself and parol evidence is not admissible to impeach it or vary its terms. Miles v. Barrett, supra.

The evidence in the record shows that appellant could have attempted to avoid or rescind the entire release on the grounds of mutual mistake, fraud or misrepresentation. Furthermore, appellant could have requested reformation of the release, pursuant to Code of 1975, § 8-1-2, to express the true intention of the parties. Appellant chose none of those routes. Rather, she asks this Court to fashion a new remedy, i.e., a “partial revocation” of the release. The release cannot be construed as valid to Mr. Beavers, yet void as to appel-lees. The entire release must be construed as either void or invalid as to all parties. We find that the unambiguous release is valid as a matter of law. Thus, the trial court did not err in granting summary judgment.

Let the judgment be affirmed.

AFFIRMED.

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

SHORES, J., concurs specially with opinion in which TORBERT, C. J., concurs.

JONES, J., dissents with opinion in which ADAMS, J., concurs.

SHORES, Justice

(concurring specially):

I concur that this opinion merely follows existing law. I note, however, that if the writing does not accurately reflect the intention of the parties to it, Mrs. Conley would be entitled to bring an action seeking reformation of the instrument to conform it to the true intention of the parties.

TORBERT, C. J., concurs.

JONES, Justice

(dissenting):

In registering my dissenting views, I acknowledge that the holding of the majority is in accord with case law generally to the effect that one who accepts payments from one tort-feasor and executes a release which, in express terms, releases “any and all other persons” is held to have discharged both the payer party as well as all other tort-feasors not party to the release agreement.

The development of our cases is clear that the “any and all other persons” language discharges the obligation, including the nonparty obligors. This arose out of the common law concept that the right of action is one and indivisible, and that satisfaction extinguishes the demand, Steenhuis v. Holland, 217 Ala. 105, 115 So. 2 (1927); and this had its inception in the earlier common law notion that a creditor’s release of any one of several joint debtors extinguishes the debt. See Orr v. Reed Phosphate Co., 215 Ala. 562, 112 So. 145 (1927). The rule of judgments which permits but a single satisfaction likewise became the rule that “satisfaction” by one without suit inures to the benefit of all, or, rather, cuts off the right of action by extinguishment.

The legislature sought, as early as 1852, to modify this common law concept, by adopting the predecessor to Code 1975, § 12-21-109. Clearly, two major changes are effected by § 12-21-109: 1) It dispenses with the necessity of a formal release under seal (Jordan v. McDonnell, 151 Ala. 279, 44 So. 101 (1907)); and 2) it modifies the conclusive effect of a creditor’s release of one of several joint debtors (Orr, supra). Surely, one other substantive change is intended: That of subjecting a settlement or release agreement to the law of contracts (“... must be given legal effect according to the intention of the parties thereto.”) The law of torts and the law of judgments influenced the evolvement of the common law rule. The obvious purpose of this statute is to have a contract of release governed by the law of contracts.

Simply stated, our case law, while giving lip service to the statutory “intention of the parties” language, has relentlessly clung to vestiges of the common law rule. To be sure, Steenhuis, approving a pro tanto agreement, demonstrates the Court’s willingness to apply this statute in favor of restricting the effect of a release contract where it speaks in terms of discharging “all claims” but limits its operation to the named party paying the consideration for the agreement. Likewise, though reaching a contrary result, Johnston v. Bridges, 288 Ala. 156, 258 So.2d 866 (1972), applied the same “intention of the parties” principle to enforce a release contract where the parties seeking to invoke its protection, though nonparties, were named or otherwise unmistakably described in the agreement.

It is not with the holdings of these cases that I disagree. The holdings of Steenhuis and Johnston, within the factual context of each case, represent classical applications of contracts law to disputed interpretations of written agreements. My quarrel lies with those cases that interpret “boilerplate” language — “any and all other persons” — as extending the discharge effect of the release to unnamed and undisclosed non-parties— persons, as here, who have paid no part of the consideration, know nothing of the release transaction, and who stand in no position of privity or other legal nexus with either of the signatories party to the agreement.

Such holdings (or language to this effect) defy the law of contracts. They continue to infuse into the interpretation of written agreements those very “joint tort-feasor” principles which were intended by the statute to be replaced by “the intention of the parties thereto” principle of contracts law.

Perhaps one simple scenario will make my point: Suppose, instead of the release agreement’s including third parties within its discharge provision, it obligated those same third parties to pay additional compensation in order to effectuate its terms. In other words, suppose the instant agreement contained a provision fixing the Ap-pellees’ obligation to the Appellant at an additional $100,000. It would be nothing short of ludicrous to even imagine that this Appellant could enforce a provision which imposes an obligation upon a nonparty to the release agreement. The same contract principle that relegates this hypothetical to the ridiculous applies with equal force to void the release provision which confers a benefit upon a nonparty.

This is not to say, of course, that parties to a contract, under given circumstances, may not obligate or benefit third parties. Indeed, the law of contracts accommodates itself to just such eventualities by prescribing the requisite elements of “parties in privity” (the capacity of a signatory party to act on behalf of nonparties) and third party beneficiaries (those nonparties whom the principals, through their mutual performance of the agreement, intend to benefit upon certain stated or implied conditions). Neither of these contract principles is applicable here; nor do the Appellees so contend.

Likewise, the law of contracts provides for the credit of any sums paid by the named released party against any liability that may be imposed against nonparties to the release agreement. In other words, if this Plaintiff should recover a $100,000 award from the Defendants for her injuries, the $15,500 consideration paid by her employer’s liability insurance carrier would be credited against their obligation. This accommodation satisfies the “but one recovery” concept, and, thus, adequately protects nonparties to the release agreement. Moreover, the limitations of the parol evidence rule are less restrictive where third parties are seeking to invoke the benefits of a contract. See W. H. E. Jaeger, Williston On Contracts, § 647 (3rd Ed. 1961).

ADAMS, J., concurs.

      . This statement of the law is an ofttimes repeated proposition in our cases. See, for example, Thompson v. N. C. & St. L. Railway, 160 Ala. 590, 49 So. 340 (1909); and Wright v. McCord, 205 Ala. 122, 88 So. 150 (1920). My limited research, however, fails to disclose a single Alabama case which directly holds that a joint tort-feasor — a nonparty who is neither named nor described in the release contract — is discharged from his tort obligation as a matter of law. As to a suit on account, however, see Gray’s Executors v. Brown, 22 Ala. 262 (1853).


author: MADDOX, Justice.

text:
    Juanita BARGER v. Dewey Lee BARGER, Administrator of the Estate of Moody Barger, Deceased.
    80-401.
    Supreme Court of Alabama.
    Feb. 5, 1982.

      C. Michael Stilson of Thompson & Stilson, Tuscaloosa, for appellant.
    McCoy Davidson of Roberts, Davidson & Wiggins, Tuscaloosa, for appellee.
   MADDOX, Justice.

On this appeal, a widow challenges, on equal protection grounds, the constitutionality of the gender-based classifications found in the Widow’s Separate Estate Statute (Code 1975, § 43-5-3), the Widow’s Share of Personalty Statute (Code 1975, § 43-3-10), and the Widow’s Share of Realty Statute (Code 1975, § 43-5-2).

Prank Moody Barger died on April 11, 1978, owning real and personal property. His son, Dewey E. Barger, who was named executor in the will, filed a petition to probate his late father’s will and the will was admitted to probate on May 26, 1978. On June 29, 1978, Juanita Barger, the widow, filed a petition for dower, a claim for homestead and personal exemption and her dissent from the will. On July 5, 1978, the widow requested that the administration of the estate be removed to the circuit court; the administration of the estate was ordered removed to the circuit court on July 14, 1978.

On June 4, 1980, the widow’s attorneys filed what was styled “Motion to Declare Statutes Unconstitutional” in which she claimed that §§ 43-5-3, 43-3-10 and 43-5-2 were unconstitutional because they contained a gender-based classification which was “based upon old notions of the relationships between men and women.” No service of this motion was brought or had on the Attorney General of the State of Alabama.

Appellee contends that since the widow requested the trial court to make a declaration concerning the constitutionality of the three statutes mentioned in her motion, that the Attorney General of the State of Alabama should have been served with a copy of the motion under the provisions of Code 1975, § 6-6-227. We agree.

The widow contends that compliance with § 6-6-227 is only required in original actions for declaratory relief which involve the validity of a state statute. We cannot agree with her contention.

Even though her request for a declaration of rights was made in connection with the administration of her deceased husband’s estate, we hold that the widow should have complied with the provisions of § 6-6-227.

Other provisions of Alabama’s Declaratory Judgment Act expressly mention wills and estates as subjects of declaratory relief and it seems only reasonable and logical that the legislature intended to cover other than original declaratory judgment actions.

Code 1975, § 6-6-223, provides:

“Any person interested under a deed, will, written contract or other writings constituting a contract or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise may have determined any question of construction, or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder. (Acts 1935, No. 355, p. 777; Code 1940, T. 7, § 157)” [Emphasis added.]

Code 1975, § 6-6-225, provides, in part:

“Any person interested as * * * an executor, * * * heir, [or] next of kin * * * in the administration * * * of the estate of a decedent, * * * may have a declaration of rights or legal relations in respect thereto:
* * * * * *
“(3) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings. (Acts 1935, No. 355, p. 777; Code 1940, T. 7, § 159.)”

Based on the foregoing, we hold that the legislature intended that, when a party seeks a declaration of rights as to the validity of state statutes during the course of the administration of an estate, as in this case, that the service on the Attorney General, pursuant to § 6-6-227, is mandatory and jurisdictional. Cf. Bond’s Jewelry Co. v. City of Mobile, 266 Ala. 463, 97 So.2d 582 (1957); Nicholson v. Board of Comm’rs of Ala. State Bar Assn., 338 F.Supp. 48 (M.D.Ala.1972).

Because the widow failed to serve the Attorney General as required by state law, we hold that the trial court was without jurisdiction to decide the state and federal constitutional claims. The appeal is due to be dismissed.

APPEAL DISMISSED.

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

TORBERT, C. J., not sitting.


author: FAULKNER, Justice. TORBERT, Chief Justice

text:
    William R. MASON and Frances Mason v. The COUNTY OF MOBILE, Alabama.
    80-503.
    Supreme Court of Alabama.
    Feb. 5, 1982.

      Bob Sherling, Mobile, for appellants.
    Davis Carr of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
   FAULKNER, Justice.

Plaintiffs, William R. Mason and Frances Mason, are the owners of residential property located in Mobile County, Alabama. In 1977, Mobile County altered a drainage ditch which was located along the north border of the Masons’ property. The drainage ditch originally ran east to west, but was altered to make a ninety degree turn at the northeast corner of the property and continued southward along the east line of the Masons’ property.

The Masons’ home has been flooded several times since the alteration in the ditch. Mr. Mason contacted the county concerning the alteration and was told that if the culvert did not properly handle the water, the county would correct the problem. Mr. Mason, in his affidavit, stated:

“Within two to three months after a rain I called Arnold Debrow’s secretary and was told Mr. Debrow was out. I described the problem to her and in response to my call an engineer (John Murphy, I think) came to my house. He said I definitely had a problem and he would get back with the commissioner’s office.
“I went through the same procedure some months later and someone was sent out to my house.
“I contacted Bay Haas in early 1979, to the best of my recollection. He said he would have an engineer look at the problem. I asked if he wanted to call me or for me to call him. He said for me to call him. When I called him back he said they had looked at it and would try to remedy the problem. I talked to him in November, 1979, and asked if he had forgotten my problem. He said he did not remember it. I explained it to him again and he told me again he would send an engineer. In the first part of 1980, I contacted Jeff Mims. He said he had some work to do in the area and while they were there, they would have the crew come in and take care of my problem, too. I talked to him again in February or March of 1980, and he said they had a work order to do the work. When no one showed up, I called Jeff Mims for four days in a row. He never returned my call, but he sent Houston Pierce to my home.
“I told Houston Pierce that if they did not correct the problem I was not going to call him again and that I was going to file a lawsuit.
“I have called the commissioner’s office on many occasions, but this affidavit reflects the results of specific conversations and the representations I recall having been made to me.”

In May, 1980, Mr. Mason filed a claim against Mobile County with the County Commission, in accordance with Code 1975, § 6-5-20. The Masons filed an action in the Circuit Court of Mobile County in September, 1980. The complaint consisted of four counts: negligent engineering of the drainage ditch, negligent construction of the ditch, nuisance, and continuing trespass. On December 3,1980, the trial judge granted the County’s motion to dismiss Counts One, Two and Three on the basis of the statute of limitations. The Masons filed a motion to reconsider and submitted the affidavit of Mr. Mason. The motion was denied, and a final judgment was entered against the plaintiffs on March 13, 1981. The Masons appeal. We reverse.

The plaintiffs’ counts in negligence and nuisance are subject to a one-year statute of limitations under Code 1975, § 6-2-39. Mobile County asserts that the only conduct sufficient to estop a defendant from raising the statute of limitations is “an affirmative inducement to the claimant to delay bringing the action.” Seybold v. Magnolia Land Co., 376 So.2d 1083 (Ala.1979). In order to constitute an affirmative inducement, the defendant contends it must actively mislead “the plaintiff and urge him not to file a lawsuit.” See City of Montgomery v. Weldon, 280 Ala. 463, 195 So.2d 110 (1967).

Seybold v. Magnolia Land Co., 376 So.2d 1083 (Ala.1979), and other cases cited by Mobile County construe Code 1975, § 6-2-3, which tolls the statute of limitations in the case of fraudulent concealment. This section cannot act to toll the statute of limitations in this action because there has been no concealment of the cause of action or injury, only an inducement not to bring a lawsuit on a claim the Masons knew existed. The sole issue in the present case is whether a person’s representations that damages will be repaired which mislead a potential plaintiff into believing that he or she can postpone bringing a claim may toll the statute of limitations contained in Code 1975, § 6-2-39.

In Ex parte Youngblood, [Ms. March 27, 1981] (Ala.1981), this Court addressed the same issue in the context of the workmen’s compensation statutes. In that case, an employee suffered a hip injury during the scope of his employment. The doctor authorized by his employer to treat the injury told Youngblood on several occasions that he could not determine the extent of Youngblood’s permanent disability until after the removal of a hip nail in a subsequent operation. Mr. Youngblood, relying on these representations, waited to file his claim for permanent disability until after the operation, after the statute of limitations contained in Code 1975, § 25-5-80 had run. Justice Maddox, speaking for the Court, stated:

“[T]he representations of an employer or its insurance carrier may be such as to estop them from asserting the statute of limitations as a bar to a claim for workmen’s compensation, if the employer or the carrier, or their representatives, in their dealings with the claimant, conduct themselves in such a manner, whether innocently or fraudulently as to mislead the claimant into believing that he can postpone the filing of his claim until the period of limitation has expired [emphasis added].”

The rationale of the Court in Ex parte Youngblood is equally applicable to the facts of the present case. The County of Mobile represented to the Masons on several occasions that it would attempt to correct the problem with the drainage pipe. Relying on these representations, Mr. Mason delayed bringing an action. It would be inequitable to permit the County of Mobile to assert the statute of limitations as a bar to bringing the cause of action. We hold that Mobile County’s conduct estops it from raising the bar of the statute of limitations. The trial court erred in granting the County’s motion to dismiss. The judgment is reversed and the cause is remanded.

REVERSED AND REMANDED.

JONES, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

TORBERT, C. J., and MADDOX and AL-MON, JJ., dissent.

TORBERT, Chief Justice

(dissenting).

I respectfully dissent. The majority holds that Ex parte Youngblood, [MS. March 27, 1981] (Ala.1981), is directly applicable to the facts of this case to toll the one-year statute of limitations found in Code 1975, § 6-2-39. Youngblood, however, is easily distinguishable. This Court stated in Youngblood:

The representations of an employer or its insurance carrier may be such as to estop them from asserting the statute of limitations as a bar to a claim for workmen’s compensation, if the employer or the carrier, or their representatives, in their dealings with the claimant, conduct themselves in such a manner, whether innocently or fraudulently, as to mislead the claimant into believing that he can postpone the filing of his claim until the period of limitation has expired. Whether the employer or the carrier, or their representatives were primarily responsible for the delay is a fact question for the factfinder at the trial level. We also hold that the question of whether a person is a representative of the employer or the carrier is essentially one of fact also. This construction of the limitations provisions of the workmen’s compensation statute is in accordance with the well recognized rule that the workmen’s compensation law must be liberally construed in furtherance of its beneficent and humanitarian purposes, [emphasis supplied].

Ex parte Youngblood. From this quotation it is plain that this holding was limited to employer-employee situations. When the employer is primarily responsible for the injured party’s delay in bringing the action, the courts will hold that the employer is estopped from asserting the statute of limitations. Obviously, this action is not an employer-employee situation and Young-blood will not apply.

The second distinction is that Youngblood was construing the workmen’s compensation laws, which are to be construed liberally. Ex parte Youngblood, [MS. March 27, 1981] (Ala.1981); Gilmore v. Rust Engineering Co., 289 Ala. 46, 265 So.2d 591 (1972); Bell v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968). This is distinguished from the generally accepted rule that to give rise to an estoppel against pleading the statute of limitations there must be an affirmative inducement to the claimant to delay the commencement of the action. Seybold v. Magnolia Land Co., 376 So.2d 1083 (Ala.1979). The representations required here fall far short of any affirmative inducement needed to estop the defendant from pleading the statute of limitations.

In City of Montgomery v. Weldon, 280 Ala. 463, 195 So.2d 110 (1967), this Court estopped the defendant from pleading the statute of limitations. In that case, this Court found that the city’s adjuster and the claimant had formed a “warm acquaintanceship” and that a “spirit of cooperation was created between the parties and a relationship of confidence was spawned.” The plaintiff had also sent a letter to the mayor in an effort to comply with the statute. As a result, the adjuster “assured the plaintiff that all was well; that they had done all that was necessary to perfect and complete the claim,” and that there was no need to consult a lawyer. Here there is no doubt that no “warm relationship” or “spirit of cooperation” existed. The plaintiffs were not told that there was no need to consult an attorney and they were not assured that they had done all that was necessary to perfect their claim.

The plaintiffs here do not make a claim of intentional deception practiced by the county. They do not claim that the county actively urged them not to file a lawsuit or consult an attorney. Since the decision of Ex parte Youngblood is inapplicable, then the standards set out in Seybold v. Magnolia Land Co., 376 So.2d 1083 (Ala.1979), and City of Montgomery v. Weldon, 280 Ala. 463, 195 So.2d 110 (1967), should control. Thus, the statute of limitations should not be tolled and the plaintiffs’ counts based on negligence and nuisance should be barred.

MADDOX and ALMON, JJ., concur.


text:
    Clara V. CLARK v. JEFFERSON COUNTY BOARD OF EDUCATION.
    80-579.
    Supreme Court of Alabama.
    Feb. 5, 1982.
    Thomas K. Jefferson, Huntsville, for appellant.
    Carl E. Johnson, Jr. of Bishop, Colvin & Johnson, Birmingham, for appellee.
   MADDOX, Justice.

Does a county board of education have legal authority to operate a child care center? That is the sole question presented by this appeal.

The Jefferson County Board of Education offers child care services as an adjunct to its regular academic program. These services are rendered in response to requests from community members in twelve “Human Resource Zones” in the county. The child care services are offered under the auspices of the Community Education Department of the Board, and while the scope and nature of the child care programs offered by the Board vary somewhat from zone to zone, in accordance with the needs and desires of the local community, the basic child care services include supervision of recreational activities, including physical activity, feeding of a snack, assistance with homework, and, when requested, special tutorial programs coordinated with regular school work.

Participation in these programs is voluntary and on a fee basis. The community education program of the Board and the child care program, in particular, are “self-sufficient” in that all expenses are met by fees generated from the programs. All programs are conducted within existing school facilities.

Appellant Clara Clark owns two day care centers in Jefferson County and one in Shelby County under the name of Happy House Day Care Center, Inc. The Jefferson County facilities owned and operated by Clark are in Irondale and Hoover. Clark identified several facilities which she contends are in competition with her Irondale facility, including at least one child care program operated by the Jefferson County Board of Education.

Clark filed suit against the Board of Education, and sought an injunction to prohibit the continued operation by the Board of Education of the child care programs. Clark, in her suit, claimed that the Board was not empowered to operate the child care centers. The trial judge, after hearing testimony and considering numerous exhibits, refused to grant Clark any relief.

The trial judge held that the operation of a child care center was an activity within the broad powers granted to county boards of education. Clark appealed. As previously noted, the sole issue is: Does a county board of education have authority to operate a child care center?

We first state, in summary form, Clark’s argument that the Board has no authority to operate a child care program. She says that county boards of education, creatures of statute, can exercise only those powers which are expressly conferred upon them, that the powers granted to county boards by Code 1975, §§ 16-8-8, and 16-8-9, to administer and supervise is limited to public schools, and that a day care program is not a part of a public school because “public schools” are those established and maintained for persons between the ages of 7 and 21. Basically, Clark argues that if the legislature had intended for county boards of education to have authority to offer educational or other opportunities to preschoolers, it would have authorized such activities, by law, as it did with kindergartens (Code 1975, § 16-8-41), elementary, junior and senior high schools, grades 1 through 12 (Code 1975, § 16-8-36), adult education (Code 1975, § 16-34-1, et seq.), rehabilitation of handicapped children and adults (Code 1975, § 16-38-1, et seq.), vocational schools (Code 1975, § 16-37-1, et seq.), and special education (Code 1975, § 16-39-1, et seq.). Clark’s position is aptly stated by this quote from her brief: “No statute authorizes the education of children between one day and 5 years old.”

The County Board contends that “the curricular and extracurricular offerings of the public school systems within this state, as in all states, are established by local boards of education in the exercise of their broad discretionary authority conferred by statute” and that in Alabama, this grant of authority is manifested throughout Chapter 8 of Title 16 of the Alabama Code.

The Board specifically claims that the following Code sections grant to it the necessary power to operate a day care center:

“The general administration and supervision of the public schools of the educational interest of each county, with the exception of cities having a city board of education, shall be vested in the county board of education.”

Code 1975, § 16-8-8.

“The county board of education shall exercise through its executive officer, the county superintendent of education[,] and his professional assistants, control and supervision of the public school system of the county. The board shall consult and advise through its executive officer and his professional assistants with school trustees, principals, teachers and interested citizens and shall seek in every way to promote the interest of the schools under its jurisdiction.”

Code 1975, § 16-8-9.

“The county board of education shall determine and establish a written educational policy for the county and shall prescribe rules and regulations for the conduct and management of the schools.”

Code 1975, § 16-8-10.

The Board argues that the establishment of a community education program, of which the child care specifically challenged by plaintiff is a part, constitutes a classic example of the exercise of administrative discretion, adopted in furtherance of what this lawfully constituted board of education deems to be in the best interest of the school system and its patrons.

The Board, therefore, says that where there is a broad grant of statutory authority, no specific grant of authority to operate a child care program is required. The Board, in its brief, argues:

“Apparently, appellant contends that a public school system is without authority to devote its facilities or resources to any use other than those specifically prescribed somewhere in the education code. Clearly, the Legislature did not see fit to enumerate or to limit the multifarious programs and activities, both academic and nonacademic, which are enjoying record levels of public participation and support in this County and throughout the State. For example, review of Chapter 8 of Title 16 reveals no specific statute which authorizes county boards of education to support and maintain varsity athletic programs, band programs, or even lunchroom facilities. However, no one would seriously argue that the maintenance of such activities is not within the discretionary prerogative of county boards of education. The program attacked in the instant case is no less an exercise of the Board’s proper discretionary authority. Like a band or varsity athletic program, it offers an opportunity for an enriching though not strictly academic experience which is made possible only through the availability of school facilities and the continuing support of the local board of education.”

Although the Board takes the position that its child care program is properly established and maintained under the Board’s general, discretionary authority, it cites other statutes which it says inferentially support its position. It says that the provisions of Code 1975, § 16-8-41, which grants county boards authority to establish and maintain kindergartens and playgrounds is an example. It also cites Code 1975, § 38-7-2(8), which defines a day care center, but which specifically excludes:

“a. Kindergartens or nursery schools or other daytime programs operated by public elementary systems or secondary level school units or institutions of higher learning.” [Emphasis added.]

The Board contends that the foregoing statute constitutes express legislative ac-knowledgement and approval of the existence of “other daytime programs” operated by public schools which are similar to private day care centers. “Clearly,” says the Board, “knowledge of the existence of such daytime programs as are being challenged in this case must be imputed to the legislature on the basis of this express exclusion from the coverage of the Child Care Act.

The Board also calls our attention to evidence introduced during the trial which shows that the State Board of Education has actively and officially supported the implementation and development of Community Education in local school systems. Illustrative of this evidence is a position statement adopted by the Alabama State Board of Education on March 23, 1977, which reads as follows:

“The State Board of Education in its efforts to provide the highest quality education for the citizens of Alabama recognizes the components of community education as a most positive influence on the lifelong learning process and the democratic way of life. The State Board of Education also sees the development of positive attitudes toward education, schools, schooling and community agencies as one of the strongest products of the community education philosophy. This philosophy includes increased use of public facilities, increased contacts between school personnel and the community, and citizen involvement in the decision making process that ultimately affects their lives. The community school therefore, represents the best interests of our public schools in Alabama.”

Other exhibits included a publication which showed that the Alabama State Department of Education defines “community education” as follows:

“WHAT IS COMMUNITY EDUCATION?
“Community education is a concept that stresses an expanded role for public education and provides a dynamic approach to individual and community improvement. Community education encourages the development of a comprehensive and coordinated delivery system for providing educational, recreational, social and cultural services for all people in a community. Although communities vary greatly with some being richer than others, all have tremendous human and physical resources that can be identified and mobilized to obtain workable solutions to problems. Inherent in the community education philosophy is the belief that each community education program should reflect the needs of its particular community. The philosophy advocates a process which produces essential modifications as times and problems change.”

The publication includes a page which shows that “day care” is one of the activities under the umbrella of “people of all ages together using a community school and community resources.”

The concept of community education is probably best expressed in a publication entitled “Community Education: A Position Statement,” which was adopted by the Alabama State Board of Education in March, 1977, and which is included in the record. In this publication, the history, rationale and purpose of community education is set forth. Included in the foreword is a statement by Dr. Wayne Teague, State Superintendent of Education, in which he says: “It is my belief that Community Education can be of great value to a school system and a community interested in maximizing public involvement, citizen awareness and use of facilities.” The publication states that “the State Board of Education, recognizing the importance of and supporting the concepts involved in Community Education, adopted a resolution in March, 1975, urging all local school systems ‘to actively pursue the community education concept.’ ”

In a section entitled “History” is the following:

“In Alabama, as in every other state, the community was an essential part of the early schools. Originally, of course, the American school grew out of the desire of communities to reinforce and add to the teachings of the home and church. As communities grew larger, however, our schools also grew larger and more complex. Gradually, the involvement of the community with the school has decreased.
“... [I]n Flint, Michigan in 1935, a movement was begun which has, as one of its basic concepts and goals, the involvement of the community in the educational process, to the point of making the community the classroom. The movement is known today as the philosophy of Community Education and its most common delivery system is known as the Community School.”

In the position statement, under a heading “Rationale” is the following:

“The 1972 President’s Commission on School Finance suggested that Community Schools are a means of developing a closer linkage between school children, parents and other citizens in the education community. Involvement of community residents in programs in which they are highly interested and frequently have a voice in developing, naturally ‘bridges the gap’ between school and community. In addition, it fosters positive feelings toward supporting education.
“Community Education is a process by which we can enhance cooperation with other community and social agencies and can provide maximum utilization of the tax dollar. The Community Education concept is based on the fundamental premise that the public schools belong to all the people, from pre-schoolers through senior citizens. By means of Community Schools, local resources can be harnessed to provide a forum as a means to work with community problems, while bringing back a sense of community identity whereby adults, students and community members can work, play and learn together.”
sfc % sf: sfs * *
“The neighborhood school facilities are owned by the community. They may be used for a whole range of community activities which support, strengthen and augment the basic program for which the educational system exists. The Community School expands the role of the school from a formal learning center for the young, operating six hours a day, five days a week, thirty-five weeks a year, to a total community opportunity center for the young and old, operating virtually around the clock throughout the calendar year. Summarily, it relates the operation of the school to those particular needs of that community.”

The purpose of community education is summed up in the publication as follows:

“Encourage maximum use of school and other facilities for educational, cultural, recreational and social activity.
“Demonstrate that Community Education is an effective administrative structure for assessing, planning, developing and delivering community (education) services.
“Generate sufficient local interest in our public schools to the extent that they become the focal point for facilitating community involvement.
“Provide the leadership in bringing agencies and organizations together for joint planning and program operations that provide a choice to the public in the delivery of services.
“Implement a State Advisory Council for Community Education with the major objective advising the State Superintendent of Education on Community Education.”

Based on the foregoing facts, and applying the law to those facts, we conclude that the judgment of the trial court is due to be affirmed.

The legislature has made broad grants of authority to the Alabama State Board of Education, the Alabama State Department of Education and to the individual county boards of education to administer and supervise the public schools. It is apparent that the Alabama State Board of Education, pursuant to authority granted it by law, has encouraged the development of “community education,” of which “day care” is a part, and has determined that community education is in the best interest of the public schools in Alabama.

This Court has long recognized that the power to administer and supervise the school systems is vested in the various boards of education. The statement of law is contained in Hargett v. Franklin Co. Bd. of Education, 374 So.2d 1352 (Ala.1979), wherein this Court opined:

“It is established that the administration of school systems is the responsibility of the county boards of education. Code 1975, §§ 16-8-8 & -9. Accordingly, the courts will not seek to control the exercise of the broad discretion given by the legislature to the county boards of education. All legal intendments are indulged in favor of the orders of such boards and the orders are due to be upheld unless the invalidity is clearly shown by those challenging the order. Woods v. Board of Education of Walker County, 259 Ala. 559, 67 So.2d 840 (1953); Mullins v. Board of Education of Etowah County, 249 Ala. 44, 29 So.2d 339 (1947).”

We have carefully considered Clark’s argument that a public body, without statutory authority, is encroaching upon an area of private enterprise.

Upon consideration of the facts and the law, we hold that while there is no specific statutory grant of authority to local boards of education to operate day care centers, there is authority for such activity under the broad grants of power which we have evaluated and discussed in this opinion. We, therefore, affirm the judgment of the trial court.

AFFIRMED.

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

BEATTY, J., concurs in the result.


text:
    Mattie R. DERICO v. Thomas R. DUNCAN.
    CER 22.
    Supreme Court of Alabama.
    Feb. 12, 1982.

      David S. Yen for Legal Services Corp. of Alabama, Montgomery, for petitioner.
    Terry P. Wilson of Turner, Wilson, Christian & Dorrough, Montgomery, for respondent.
   JONES, Justice.

The following question was certified to this Court so that we might “... answer a question of law which is deemed determinative of an action before [the U. S. District Court and to which [there is no clear controlling precedent in the decisions of the Supreme Court of Alabama.”

“Does defendant’s failure, which was not willful, to obtain a license according to Section 5-19-22 affect plaintiff’s obligation under the loan contract between plaintiff and defendant, and if so, to what extent?”

The order entered by the U. S. District Court contained the following statement of the underlying facts in this case:

“Defendant Thomas R. Duncan conducted a business in Montgomery, Alabama, known as Federal Building Service. In the summer of 1978, defendant, or his representative, contacted plaintiff Mattie Derico to solicit the business of making repairs to her home and placing siding thereon for the cash price of $6,381.00. In addition to the work which defendant would perform on plaintiff’s house, defendant Duncan agreed to satisfy an outstanding bond for title contract on plaintiff’s home held by Mrs. Flora Davis in order to obtain a first mortgage on plaintiff’s home. The amount of this outstanding bond for title contract was $7,619.00. It carried an interest rate of 8 per cent annually.
“Defendant Duncan and Mrs. Derico signed a document entitled ‘Agreement,’ which recited that the total cash price of the transaction, including the cost of satisfying the obligation to Mrs. Davis on the bond for title, was $14,000.00. The entire amount was to be financed at a 12.78 per cent annual rate of interest. Under her agreement with defendant, plaintiff executed a mortgage on her home in favor of defendant for the total amount of her indebtedness which, including interest, would be an amount of $27,439.20.
“Evidence presented at trial established that during the period from April, 1978 to August, 1978, Defendant Duncan entered into approximately twenty agreements by which defendant agreed to repair a customer’s residence and satisfy an outstanding mortgage or other obligation of the residence’s owner, in return for a cash price, plus interest and a new mortgage securing the customer’s total indebtedness to defendant.”

Our answer to the question posed is based upon our interpretation of Code 1975, § 5-19-1 et seq., “Consumer Finance” (known as the Mini-Code), and of the specifically applicable provisions thereof.

It is uncontroverted that Defendant, in failing to obtain a license “to engage in the business of making consumer loans,” was in direct violation of § 5-19-22(a), which states in pertinent part:

“(a) No creditor shall engage in the business of making consumer loans ... without first having obtained a license for each location from the administrator;

The instant controversy arises from the parties’ respective contentions as to the effect the Defendant’s failure to obtain the required license has on the contract here in issue and its resulting obligations.

Defendant concedes his failure to obtain the required license, but maintains that the exclusive statutory remedy for a violation of § 5-19-22(a) is found in § 5-19-30, which states:

“(a) A creditor who ... willfully engages in the business of making loans in violation of subsection (a) of section 5-19-22 is guilty of a misdemeanor and, upon conviction, will be sentenced to pay a fine not exceeding $500.00 or to imprisonment not exceeding one year, or both.” (Emphasis supplied.)

The Plaintiff, however, reasons that § 5-19-22 is a “regulatory statute” and, therefore, that Defendant’s violation of that statute renders the loan agreement between the parties null and void.

The District Court, in posing the question for certification to this Court, states that Defendant’s failure to obtain the required license was “not willful.” That being so, were we to accept Defendant’s reasoning, he would avoid any and all penalty for his unlawful conduct which, during 1978, manifested itself in “approximately twenty agreements” similar to the one here. We hold that established Alabama law mandates our rejection of Defendant’s contention.

As early as 1918, this Court specifically and unequivocally held:

“The rule in this state is that, if a statute was not designed to prohibit the making of contracts without previous compliance with statutory provisions, but was intended merely to provide revenue, it is not void if no specific prohibition or penalty is provided or imposed. If the conditions of the statute were made for the benefit of the public, and not for the raising of revenue only, an agreement is void that does not comply with the statutory conditions.” Bowdoin v. Alabama Chemical Co., 201 Ala. 582, 583, 79 So. 4 (1918).

In succeeding years this Court has not departed from the standard as announced in Bowdoin, and contracts made in violation of regulatory statutes enacted for the protection of the public have been rendered null and unenforceable. See Southern Met al Treating Co. v. Goodner, 271 Ala. 510, 125 So.2d 268 (1960) (engineer statute); Faulkner v. Stapleton Insurance & Realty Corp., 266 Ala. 437, 96 So.2d 761 (1957) (real estate broker statute); Bankers & Shippers Insurance Co. v. Blackwell, 255 Ala. 360, 51 So.2d 498 (1951) (federal motor carrier statute); Knight v. Watson, 221 Ala. 69, 127 So. 841 (1930) (real estate broker statute).

In turning to the statute now before us, we observe that the tenor of the Mini-Code, when the chapter is perceived as a whole, is one of consumer (public) protection. § 5-19-2 creates a Consumer Protection Council. § 5-19-6 requires that a highly visible warning be printed on instruments to be signed by debtors which cautions the borrower to “thoroughly read the contract” before signing it. § 5-19-11 requires that before bringing an action for collection a creditor must file an affidavit stating that there “has not been a violation of the provisions of this chapter.” A “buyer’s right to cancel” a home solicitation sale is provided for in § 5-19-12. Under the terms of § 5-19-16, if a court finds that the terms of an agreement made under this chapter are unconscionable, the court “may refuse to enforce the agreement, or it may enforce the remainder of the agreement without the unconscionable provision, or it may so limit the application of any unconscionable provision as to avoid any unconscionable result.” § 5-19-19 sets out the liabilities of a creditor who makes excess finance charges. The power and authority to enforce the provisions of the Mini-Code are given to an administrator by § 5-19-21. § 5-19-22 requires that any creditor in the business of making consumer loans or taking assignments of consumer credit first obtain a license. § 5-19-23 states the grounds for the revocation or suspension of the aforementioned license. § 5-19-24 gives the administrator the authority to investigate the Mini-Code licensees and § 5-19-25 gives the administrator the power to issue cease and desist orders to Mini-Code licensees. § 5-19-29 gives the administrator the authority to bring an action to enjoin violations of this chapter and § 5-19-30 sets out the penalties for various willful violations of the Mini-Code.

Taking into consideration, then, the overall scheme of the Mini-Code and the reasoning set out in Cooper v. Johnston, 283 Ala. 565, 219 So.2d 392 (1969) (recently reaffirmed in Hawkins v. League, 398 So.2d 232 (Ala.1981)), we hold that the legislature enacted the Mini-Code “for regulation and protection as distinguished from a law created solely for revenue purposes.” Cooper at 567, 219 So.2d 392. In Cooper, this Court considered the Alabama statute which regulates the business of general contracting and concluded that the “primary purpose [of this statute] was to protect the public against incompetent contractors ... and also to assure properly constructed structures ... free from defects and dangers to the public.” The statutory factors which led to this conclusion were the examinations required for all applicants for a contractor’s license, the administration of the statute’s provisions by a Board which considered the financial condition of each applicant and held the power to revoke licenses for various infractions of the statutory requisites.

Section 5-19-22, the licensing provision of the Mini-Code, is unequivocal in its requirement that those creditors who make consumer loans shall not engage in that business without first having obtained a license to do so. Furthermore, this particular section requires that:

“(b) The license application shall be in writing, under oath, in the form prescribed by the administrator and shall be accompanied by an investigation fee of $100.00.
“(e) Upon receipt of the application and investigation fee, the administrator shall investigate the applicant and determine whether the license should be issued or denied.
“(d) No license shall be issued unless the administrator determines that the financial responsibility, character and fitness of the applicant, and of the members thereof if the applicant is a partnership or association, officers and directors thereof if the applicant is a corporation are such as to warrant belief that the business will be operated honestly and fairly within the purpose of this chapter and finds that the applicant has assets available for the operation of business under this chapter of at least $25,000.00.
“(g) The license shall be in the form prescribed by the administrator, posted conspicuously in the place of business of the licensee and shall not be assignable or transferable or removed to another location without permission of the administrator.”

We can see one purpose for the legislature’s painstaking delineation of these requirements: the protection of the public when dealing with those who make consumer loans through the strict regulation and supervision of the creditors themselves. Section 5-19-22 is clearly regulatory in nature and not, as defendant would have us hold, merely revenue-producing. Indeed, “[i]t occurs to us that if the legislature had intended the [statute] to be primarily for revenue purposes, it well could have omitted authority to revoke the license. The [fee] collected, revocation of the license would not be necessary. Payment would end the matter.” Cooper, supra, at 568, 219 So.2d 392.

Having found, then, that the aim of both the entire Mini-Code and § 5-19-22 is the protection of the consumer — or, in the language of our above-cited decisions, “the public” — we must concomitantly hold that § 5-19-30 is not the exclusive source of remedies for violations of the Mini-Code’s sections. Indeed, as we have always held to be the law in Alabama, whenever regulation and protection are the goal of a statute, contracts made in derogation of that statute are null, void, and unenforceable. Indeed, that the legislature has seen fit to declare that certain willful violations of the statute are “misdemeanors” and to provide specific penalties therefor, strengthens our finding of the regulatory nature of the Mini-Code rather than, as Defendant suggests, excludes all remedies except those found within the limits of § 5-19-30.

We conclude that the provisions of Code 1975, § 5-19-1 et seq., “Consumer Finance,” known collectively as the Mini-Code, are regulatory in nature and are for the protection of the public, specifically, the consumer/debtor.

In this context, then, we have examined the Mini-Code in the light of applicable Alabama law and we hold that contracts made in violation of the requirements of the Mini-Code are null, void, and unenforceable as a matter of public policy. Further, we hold that, notwithstanding Defendant’s non-willfulness in failing to obtain a license to engage in the business of making consumer loans, that failure was in direct violation of § 5-19-22(a). Therefore, that portion of Plaintiff’s indebtedness represented by the loan (as distinguished from the debt on the contract to repair) is void, including both the principal and the interest. However, the interest charges on the voided loan cannot be added to the construction debt so as to render those charges usurious.

CERTIFIED QUESTION ANSWERED.

All the Justices concur.

      . The Mini-Code’s only reference to “willfully” is contained in § 5-19-30(a), which prescribes the “scienter” requisite for a criminal conviction.

      . For an excellent discussion of the rule and its application, see Sunflower Lumber Co. v. Turner Supply Company, 158 Ala. 191, 48 So. 510 (1909).