author: ROY NOBLE LEE, Justice,

text:
    Godfrey STEPNEY v. INGALLS SHIPBUILDING DIVISION, LITTON SYSTEMS, INC.
    No. 53250.
    Supreme Court of Mississippi.
    June 2, 1982.
    Rehearing Denied July 14, 1982.
    Roberts, Hull and Clark, Wynn E. Clark, Gary L. Roberts, Pascagoula, for appellant.
    Franke, Rainey & Salloum, Paul M. Franke, Jr., Gulfport, for appellee.
    Before SUGG, ROY NOBLE LEE and DAN M. LEE, JJ.
   ROY NOBLE LEE, Justice,

for the Court.

Godfrey Stepney filed a claim for compensation benefits and Ingalls Shipbuilding Division, Litton Systems, Inc. [Ingalls] the self-insured employer answered, denying that appellant was injured in the course and scope of his employment. A hearing was held before an administrative judge September 21, 1979, and he found that Stepney failed to establish that his injuries occurred within the course and scope of his employment. On appeal to the full Commission, the administrative judge’s order was affirmed and, subsequently, on April 13,1981, the full Commission’s order was affirmed by the Circuit Court of Jackson County, Honorable Clinton E. Lockard, presiding. Stepney has appealed to this Court and has assigned three (3) errors in the proceedings below.

The questions presented by the assignments of error are whether or not the Commission and lower court erred in denying compensation benefits to the claimant and whether or not claimant is entitled to compensation under the “Threshold Doctrine” or “Special Hazards” rule, which is an exception to the “Going and Coming” rule.

On May 4, 1978, claimant was employed by Ingalls where he worked on the 7:00 a. m. to 3:00 p. m. shift as a first-class pipefit-ter. Claimant had a thirty-minute lunch break each day and was permitted by In-galls to drive home for lunch, so long as he returned to work by 12:00 p. m. At approximately 11:50 a. m., while driving along the sole access road leading into the shipyard and its parking lot, he was involved in a two-car accident, and was seriously injured. The accident occurred on the access road in front of the Ingalls Employment Office.

According to claimant, he was driving along the access road, a six-lane highway, which was comprised of three (3) lanes each for north and south traffic. A pickup truck was several car lengths ahead of him in the righthand lane, and, as it passed a road leading into the employment office, one David Trotter drove out in front of claimant and the two (2) vehicles collided. At the time of the accident, and during the lunch break, claimant was driving his own personal car, was not being reimbursed for transportation expenses and was not paid any remuneration. He had not been instructed to perform any duty or task for Ingalls during his lunch period.

The general rule with reference to going to and returning from work was stated in Miller Transporters v. Seay’s Dependents, 350 So.2d 689 (Miss.1977), citing from Aetna Finance Co. v. Bourgoin, 252 Miss. 852, 174 So.2d 495 (1965), as follows:

“This Court is firmly committed to the general rule that the hazards encountered by employees while going to or returning from their regular place of work and off the employer’s premises are not incident to employment and accidents arising therefrom are not compensable. Wallace v. Copiah County Lumber Company, 223 Miss. 90, 77 So.2d 316 (1955); Dunn, Mississippi Workmen’s Compensation § 103 (1957). And an employee who claims an exception to this general rule has the burden of proving that he comes within one of the exceptions. Edward Hyman Co. v. Rutter, 241 Miss. 301, 130 So.2d 574 (1961).” 252 Miss, at 858, 174 So.2d at 497.
See also: Dunn, Mississippi Workmen’s Compensation section 175 (2nd Ed.1967), at pages 232, 233. [350 So.2d at 691].

In Wallace v. Copiah County Lumber Co., 223 Miss. 90, 77 So.2d 316 (1955), the Court set out the following exceptions to the rule:

(1) where the employer furnishes the means of transportation, or remunerates the employee; or (2) where the employee performs some duty in connection with his employment at home; or (3) where the employee is injured by some hazard or danger which is inherent in the conditions along the route necessarily used by the employee; or (4) where the employer furnishes a hazardous route; or (5) where the injury results from a hazardous parking lot furnished by the employer; or (6) where the place of injury, although owned by one other than the employer, is in such close proximity to the premises owned by the employer as to be, in effect, a part of such premises. [223 Miss, at 99, 77 So.2d at 318].

In Wallace, a night watchman for a lumber mill was injured while walking home at night for a lunch break. He slipped and fell in a hole or ditch alongside a public road leading from the mill to his home approximately one-fourth (!4) mile away. The Court said:

We do not see any peculiar or unusual circumstances here to invoke any of the exceptions we have set out above. There were a number of approaches to and from the plant used by the employees. They could select their own route; the employer furnished no special route; certainly the highway, under the facts here, did not, from a legal standpoint, become a part of the employer’s premises. Fenton v. Margate Bridge Company, 24 N.J.Super. 450, 94 A.2d 848. There was no greater danger to claimant in using the public highway than to any other pedestrian thereon. [223 Miss, at 102, 77 So.2d at 319].

In 1 Larson, Workmen’s Compensation Law, § 15.13, at 4-22 (1978), an exception to the “Going and Coming Rule” known as the “Special Hazards” exception or the “Threshold Doctrine” is stated to contain two parts: (1) the presence of a special hazard at the particular off-premises point, and (2) the close association of the access route with the premises, so far as going and coming are concerned. Section 15.14, at 4-29, further states: “[T]he clearest case for compensability is found when the off-premises route is the only means of access to the premises.”

The Minnesota Court held in Ludwig v. Farmers' Shipping Assn., 181 Minn. 90, 231 N.W. 803 (1930), that an employee, on his way to lunch in his personal car, off the employer’s premises, struck by a train as he crossed the tracks, which ran perpendicular to the sole access road leading to and from the employer’s premises, was entitled to compensation, and said the following:

Being required to exclusively travel this particular road made dangerous by its location, he was put in the position of one who had no choice in the selection of a route of travel. His employment, in effect, directed its use. For all practical purposes this short road was a part of his employer’s premises. He was expected to and did use it as if it were such. He was consequently subjected to a degree of exposure greater than the public generally, who used it occasionally only. He was also in a different position than an ordinary workman in coming and going to and from his work, being exposed only to ordinary street risks. [281 N.W. at 804].

In 1 Larson, Workmen’s Compensation Law, § 15.15, at 4-42, 4-43 (1978), Professor Larson states:

[I]t is not proximity, or reasonable distance, or even the identifying of surrounding areas with the premises: it is simply that, when a court has satisfied itself that there is a distinct “arising out of” causal connection between the conditions under which the claimant must approach and leave the premises and the occurrence of the injury, it may hold that the course of employment extends as far as those conditions extend.

Ingalls argues that no special hazard existed because the access road was a public thoroughfare and employees, who used the road, were exposed to no greater risk of accident than were members of the general public, who traveled the road.

Cases from other jurisdictions have held that the elements of a special hazard may be supplied by the necessity of making a left turn across traffic in a public street for the purpose of entering the employer’s premises. In those cases, granting compensation has involved the fact that an employee is exposed to a greater degree of risk than the general public because he is required to make the turn in order to gain entrance to the work premises and, therefore, he is exposed to the risk with greater frequency than the general public, which is not required generally to make a turn at that junction. See Greydanus v. Industrial Acc. Comm., 68 Cal.2d 490, 47 Cal.Rptr. 384, 407 P.2d 296 (1965); Pacific Ind. Co. v. Industrial Acc. Comm., 28 Cal.2d 329, 170 P.2d 18 (1946); Templet v. Intracoastal Truck Line, Inc., 255 La. 193, 230 So.2d 74 (1969); Husted v. Seneca Steel Service, Inc., 41 N.Y.2d 140, 391 N.Y.S.2d 78, 359 N.E.2d 673 (1976); and Wilkinson v. Industrial Comm., 23 Utah 2d 428, 464 P.2d 589 (1970).

Cases from other jurisdictions holding that a special hazard existed on an access road follow.

In Rambo v. International Dry Wall Co., 44 Md.App. 693, 410 A.2d 627 (1980), the claimant was injured while riding as a passenger in an automobile driven by a co-employee. The only access road leading into the employer’s premises was a partially-paved road. The automobile struck a manhole cover protruding approximately four (4) to six (6) inches above the ground, which the Maryland Court held to be a special hazard rendering the injury compensable.

Nelson v. Douglas Fir Plywood Co., 260 Or. 53, 488 P.2d 795 (1971), involved injuries to a claimant riding as a passenger in an automobile on her way to work, when the vehicle was struck by a plywood truck as her automobile was making a right turn onto a private road leading to the employee parking lot. The road the automobile turned onto was the only access road leading into the plant. The Court held that the intersection was abnormally hazardous for her as an employee because several large trucks owned by the company made that turn numerous times each day.

In Bechtel Corporation v. Winther, 262 Ark. 361, 556 S.W.2d 882 (1977), the deceased lost his life while driving to work from home. The body was found in the deceased’s submerged automobile, which had left a causeway at a curve one-quarter (Vi) mile from the plant’s back entrance. The causeway cut across a lake, which led to one of the two plant entrances, and was regularly used by approximately two hundred (200) or three hundred (300) workers daily on their way to the employer’s premises. On the morning of the accident, the weather was foggy and the visibility was poor. The causeway had no guardrails and had a gravel surface. The Arkansas Court held that a special hazard existed and the claim was compensable.

The following things are significant in the case at bar:

(1) The six-lane road or street was the only access and exit to the Ingalls West Bank shipyard and the situs of claimant’s employment.

(2) Although the street was either maintained or owned by the county or state, it was used principally by employees of In-galls and those persons who had business with Ingalls.

(3) During changes of shifts and lunch breaks, thousands of Ingalls employees left and entered the plant by that sole access route, the six-lane street.

(4) The premises on each side of the access road were owned and used by Ingalls. In addition to a regulation red stop sign at the point where the collission occurred, In-galls had erected another sign with the following words thereon:

“Dangerous
Intersection
STOP
Look Both Ways
Before Entering Road” [See Appendix I]

(5) Ingalls knew and recognized that the intersection of the access road and the road leading from the employment office constituted a hazard and the placement of the aforementioned sign at that point is an admission by it thereof.

(6) The appellant was exposed to a greater hazard than the general public for the reason that he worked regularly every week and was required to cross the dangerous intersection on his way to and from work each day.

We recognize the principle that, under the Mississippi Workmen’s Compensation Act, a claimant must establish by competent evidence his injury arose out of and in the course of his employment, and that causal connection must be shown between the employment and the injury. However, it is only necessary to prove that the injury resulted from activity which is (1) in its overall contours actuated at least in part by a duty to serve the employer, or (2) reasonably incidental to the employment. Big “2” Engine Rebuilders v. Freeman, 379 So.2d 888 (Miss.1980).

In 1 Larson, Workmen’s Compensation Law, § 15.15 at 4-42 (1978), Professor Larson reconciles the “arising out of” and “in the course of” concepts, in conjunction with the “special hazards” exception, as follows:

One may now pause and ask: what is the principle behind these exceptions to the premise rule? It is clearly not a conceptual one based on traditional tests of employment relation for respondeat superior or other purposes. There is no control whatever over the employee during the critical period, nor is he being paid wages during this time. He is not advancing his master’s interests any more than other employees returning home. In short, for respondeat superior purposes he would not be in the course of his employment.
The answer here suggested is this: in this instance, as in many others, the concept of “course of employment” follows that of “arising out of employment”; that is, the employment-connected risk is first recognized, and then a course-of-employment theory must be devised to permit compensation for that obviously occupational risk.
This is exactly what has happened here. Claimant has been subjected to a particular risk because of his employment, the risk of crossing certain railway tracks near the plant entrance, for example. Since it is so obvious that a causal relation exists between the work and the hazard, the always-ill-fitting course of employment concept has got to be stretched at least far enough to prevent the injustice of denying compensation for an injury admittedly caused by the employment.

We conclude that claimant’s injury is compensable under the Mississippi Workmen’s Compensation Act and that claimant is entitled to compensation benefits. The judgment of the lower court and the order of the Mississippi Workmen’s Compensation Commission are reversed and judgment is rendered granting unto claimant compensation benefits. The case is remanded to the Mississippi Workmen’s Compensation Commission for further proceedings to determine those benefits.

REVERSED AND RENDERED; REMANDED TO THE MISSISSIPPI WORKMEN’S COMPENSATION COMMISSION.

PATTERSON, C. J., SMITH and SUGG, P.JJ., and WALKER, BROOM, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.

APPENDIX I

      . The Mississippi Workmen’s Compensation Act was copied in large from the Arkansas Workmen’s Compensation Act and this Court has long recognized and considered the construction that jurisdiction has given to its statutes in interpreting and construing our act. See Graeber Bros., Inc. v. Taylor, 237 Miss. 691, 702, 115 So.2d 735, 740 (1959).


source: Caselaw Access Project

author:
TORBERT, Chief Justice.
      EMBRY, Justice

license: Public Domain

text:
    Aubrey Steven COX v. B. C. HERRINGTON.
    80-656.
    Supreme Court of Alabama.
    May 28, 1982.
    Rehearing Denied July 9, 1982.
    Robert E. Paden and Arthur Green, Jr. of Paden, Green & Paden, Bessemer, for appellant.
    Jasper P. Juliano and W. J. McDaniel of McDaniel, Hall, Parsons, Conerly, Scott & Lusk, Birmingham and James B. Kierce, Jr., of Stone, Patton & Kierce, Bessemer, for appellee.
   TORBERT, Chief Justice.

Appellant Aubrey Steven Cox filed a complaint against Appellee B. C. Herring-ton alleging negligent and wanton operation of an automobile on May 24, 1979, which resulted in injuries to Cox. Herring-ton’s answer denied the allegations of Cox and affirmatively stated that Cox was guilty of contributory negligence.

After discovery was completed by the parties a trial was held before a jury, begin-ing on March 16,1981, and ending on March 17, 1981. At the conclusion of all of the evidence, Herrington’s motion for directed verdict was granted as to the allegations of wantonness, and the negligence and contributory negligence issues were submitted to the jury. They returned a verdict in favor of Herrington. Cox filed a motion for new trial, which was denied by the trial court. Cox appeals, asking this court to reverse and grant him a new trial because the preponderance of the evidence presented at trial was so decidedly in favor of him that the jury verdict was wrong and unjust. We disagree with appellant and affirm.

In Alabama, the verdict of a jury is presumed correct and this presumption of correctness of the jury’s verdict is strengthened once the trial court has entertained and denied a motion for a new trial. Cooper v. Peturis, 384 So.2d 1087 (Ala.1980); Guthrie v. McCauley, 376 So.2d 1373 (Ala.1979); Mobile City Lines, Inc. v. Hardy, 264 Ala. 247, 86 So.2d 393 (1956).

In reviewing the correctness of a jury verdict, this Court must review the record in a light most favorable to the appellee. Cooper v. Peturis, 384 So.2d at 1088.

In Cobb v. Malone & Collins, 92 Ala. 630, 9 So. 738 (1890), this Court considered the general effect of reviewing jury verdicts and stated the following:

“The power to set aside verdicts has been generally regarded in this country as inherent in courts organized upon the principles of common law, though in some states it is regulated by statute, enumerating the grounds upon which a motion for a new trial may be made. The power is essential to prevent irreparable injustice in cases where a verdict wholly wrong is the result of inadvertence, forgetfulness, or intentional or capricious disregard of the testimony, or of bias or prejudice, on the part of juries, which sometimes occurs. But, in exercising the power, the court should be careful not to infringe the right of trial by jury, and should bear in mind, that it is their exclusive province to determine the credibility of witnesses, to weigh the testimony, and find the facts. Being selected for their impartiality and qualification to judge facts, and unanimity of opinion and conclusion being required, their verdicts are presumed to be correct. It has been said, that no ground of new trial is more carefully scrutinized or more rigidly limited, than that the verdict is against the evidence. — Hilliard on New Trials, 339. The power should be exercised, only, when it affirmatively appears that the substantial ends of justice require the examination of the facts by another jury. If these be the principles by which the trial court should be governed, they apply with much more force to the exercise of the power by an appellate court. When the presiding judge refuses to grant a new trial, the presumption in favor of the correctness of the verdict is thereby strengthened . .. . ”

92 Ala. at 633, 9 So. at 739. Cox’s theory of liability was Herrington’s negligent failure to yield the right of way. Herrington’s defense was that Cox was guilty of contributory negligence because he was speeding in order to get to class on time.

In this case, Cox testified that he left his home on the morning of May 24, 1979, at approximately 7:35 a. m. on his way to a class at Bessemer State Technical College. He was traveling east on New Powder Plant Road. As he approached the intersection of Interstate 59 and New Powder Plant Road, Cox saw Herrington’s automobile approximately 44 feet from his car as Herrington was moving into the left turn lane in order to enter the ramp of Interstate 59. To Cox, Herrington’s automobile appeared to be stopping so as to yield. Cox stated that he slowed down by backing off his accelerator. Herrington, however, continued with his left turn and Cox turned his steering wheel to the left and locked his brakes. Cox stated that his speed was 30 miles per hour, but acknowledged that he testified in his deposition that he was traveling between 30 and 35 miles per hour. According to the investigating officer, the speed limit on New Powder Plant Road was 30 miles per hour.

Herrington testified that around 8:00 a. m. on the morning of the accident, he went to Pike’s Barber Shop for a haircut. While the barber shop normally opened at 8:00 a. m., the barber sometimes opened it a little before 8:00 a. m. for him because the barber knew him. After receiving a haircut, Her-rington left the barber shop and headed to work. Herrington was heading west on New Powder Plant Road when he moved into the left turn lane for the purpose of turning left onto the entrance ramp of Interstate 59. Herrington stated he drove up to the intersection in the left turn lane, stopped, looked to the right and saw Cox coming over the hill, looked to the left, turned back and “wham.” Herrington stated that he thought he had time to make it but did not. Herrington further stated that he first saw Cox two tenths of a mile from the intersection. Herrington believed he was traveling approximately 10 miles per hour.

“If different inferences and conclusions may reasonably be drawn from the evidence, the question of liability must be left to the jury.” Cooper v. Peturis, 384 So.2d at 1088.

The jury heard all of the testimony and the court’s charge and reached a verdict in favor of defendant Herrington. After reviewing the evidence in a light most favorable to the appellee, this Court does not believe that the verdict was wrong and unjust. The decision by the trial judge to deny Cox’s request for a new trial is affirmed.

AFFIRMED.

MADDOX, JONES, ALMON, SHORES and BEATTY, JJ., concur.

FAULKNER, EMBRY and ADAMS, JJ., dissent.

EMBRY, Justice

(dissenting):

I fear the majority moves perilously close today to the rule that a jury’s findings on factual matters can never be disturbed.

It is well-settled that “[t]he jury is not the sole judge of the sufficiency of the evidence to sustain the verdict.” Farmers and Ginners Cotton Oil Co. v. Reliance Insurance Co., 341 So.2d 147 (Ala.1976). “[T]he power to review their conclusions in civil cases is vested in the trial court in the first instance, and in the Supreme Court on appeal.” Massengale-Manaster Poultry Company v. Burnett, 284 Ala. 465, 225 So.2d 869 (1969).

A new trial should be granted where, after allowing all reasonable presumptions of correctness, the preponderance of the evidence is so decided as to clearly convince this court that the verdict is wrong and unjust. Birmingham Southern Railroad Company v. Ball, 271 Ala. 563, 126 So.2d 206 (1961).

In the instant case, Herrington testified that he stopped before turning and saw Cox’s automobile approaching, but proceeded to turn because “I thought I had time to make it.” The proof that Herrington turned left in front of Cox established a prima facie case of negligence and no evidence to the contrary was offered.

As to the question of contributory negligence on the part of Cox, Herrington testified that he had no judgment as to the speed of Cox’s automobile. The investigating police officer gave no opinion as to the speed at which Cox’s automobile was travel-ling, nor did any other witness testify that Cox was speeding.

Although Cox’s testimony by pretrial deposition indicated he may have exceeded the posted speed limit by as much as five miles per hour, there was absolutely no evidence that this proximately caused or contributed to the collision. Tangentially, Herrington argues the jury could have inferred that Cox was exceeding that posted limit by a greater amount or was not carefully watching the road. That conclusion is not a reasonable inference from the evidence, but, rather is nothing more than mere speculation. Moreover, even assuming such a conclusion, there was no evidence that the manner of Cox’s operation of his automobile contributed to the collision.

A verdict based on mere speculation and conjecture cannot stand. Perdue v. Gates, 403 So.2d 165 (Ala.1981); Howell v. Roueche, 263 Ala. 83, 81 So.2d 297 (1955). “It is well settled that only such negligence on a plaintiff’s part as constitutes a proximate and contributory cause of his injury or damage bars his recovery.” Insurance Company of North America v. Mays, 278 Ala. 20, 174 So.2d 700 (1965); see also Shepherd v. Gardner Wholesale, Inc., 288 Ala. 43, 256 So.2d 877 (1972).

As the majority acknowledges:

“ ‘The power to set aside verdicts ... is essential to prevent irreparable injustice in cases where a verdict wholly wrong is the result of inadvertence, forgetfulness, or intentional or capricious disregard of the testimony, or of bias or prejudice, on the part of i'uries, which sometimes occurs .

Despite this acknowledgement, however, the majority chooses to disregard the mandate of the evidence for a new trial, resulting in a miscarriage of justice to the plaintiff herein.

FAULKNER and ADAMS, JJ., concur.


author: ALMON, Justice.

text:
    Marion J. JONES, Jr. v. Elsie Jo Anthony McGUIRT, et al.
    80-727, 80-727A.
    Supreme Court of Alabama.
    May 28, 1982.
    Rehearing Denied July 9, 1982.

      E. H. Graves, Jr., Eufaula, for appellant.
    Roy H. Phillips of Phillips & Funderburk, Phenix City, for appellees.
   ALMON, Justice.

By the terms of his last will and testament, Glenn W. Anthony appointed Marion J. Jones, Jr., as the executor of his estate and also trustee of a trust created by his will. Upon the granting of letters testamentary to Jones by the Probate Court of Russell County, the heirs of Glenn W. Anthony filed a petition for appointment of an administrator cum testamento annexo and requested that Jones be removed as executor of the Anthony estate and as trustee. The heirs alleged that Jones was unfit to serve as executor or trustee because he had been convicted of an infamous crime; he was incompetent; and had been imprisoned or sentenced to hard labor for a term of 12 months or more. After a hearing the probate court entered an order revoking the letters testamentary issued to Jones and removing him as executor. The court specifically found Jones was not a suitable person to serve as executor under Code 1975, § 43-2-290(1). The heirs appealed the order granting letters testamentary to Jones to the Russell County Circuit Court, but the circuit court found their appeal was moot due to the prior revocation of the letters testamentary. Jones appealed the order of the probate court removing him as executor to the circuit court. The circuit court affirmed the removal of Jones as executor. The heirs subsequently petitioned the circuit court to have Jones removed as trustee pursuant to Code 1975, § 19-3-211. The circuit court issued an order on March 16, 1981, removing Jones as trustee and appointing a successor trustee. Jones filed an application for reconsideration of the orders removing him as executor and trustee. The circuit court denied the application and Jones appealed to this Court.

Jones alleges the probate court erred in removing him as executor of the last will and testament of Glenn W. Anthony. The probate court based its decision on § 43-2-290(1), which reads:

“An administrator may be removed, and his letters revoked for his removal from the state; and an administrator or executor may be removed and his letters revoked for any of the following causes:
“(1) Imbecility of mind; intemperance; continued sickness, rendering him incapable of the discharge of his duties; or when from his conduct or character there is reason to beleive that he is not a suitable person to have the charge and control of the estate.”

Jones claims the court abused its discretion when it declared he was not a suitable person to serve as executor of the Anthony estate.

Among the evidence presented to the probate court was the following:

1) Conviction of Jones for violation of Code of Alabama 1940, Title 26, Section 336. He was sentenced to pay a fine of $200 plus court costs and also six months hard labor for Russell County. The hard labor was suspended on good behavior. The fine and costs had not been paid.
2) Conviction of Jones for violation of the Code of Alabama of 1940, Title 14, Section 428. He was sentenced to pay a $500 fine plus court costs and six months hard labor for Russell County. The hard labor was suspended on good behavior. The fine and costs had not been paid.
3) Conviction of Jones for violation of the Code of Alabama of 1940, Title 14, § 428. He was found guilty by a jury and sentenced to twelve months hard labor for Russell County. Date of the sentence was November 30, 1970. The case was appealed and affirmed.
4) A judgment was taken against Jones by Lawyers Cooperative Publishing Company for $780 on May 21, 1979. The judgment did not appear to have been paid.
5) An order signed April 28, 1972, by the Circuit Judge of Russell County in which the Judge said he was familiar with the general reputation of Jones in the community in which he lived and had further formed an opinion equally adverse as to his truth and veracity, under oath, which arose out of his knowledge acquired in prior cases in which Jones had been a party or a witness. The Judge went on to say that should Jones be a witness in his own behalf in any of the cases pending in the Circuit Court of Russell County, he would not be able to give Jones a fair and impartial trial and would be unable to believe Jones under oath. The Judge then recused himself from all hearings involving Jones and notified the Chief Justice of the Alabama Supreme Court to this effect.

In addition, at the circuit court hearing there was testimony by the Clerk of the Circuit Court of Russell County, that Jones owed court costs in the amount of $789.15 involving 32 cases.

Based on this evidence, we cannot say that the court abused its discretion in removing Jones as executor. There was sufficient evidence to support the court’s finding that based on Jones’s conduct or character, he was not a suitable person to have in charge and control of the estate.

Jones also claims error in his removal as trustee by the circuit court. The circuit court stated in its order that:

“The Petitioners averred in their Petition that Marion J. Jones, Jr. was not a fit and proper person to serve as Trustee under the Last Will and Testament because of the provisions of Title 43, Chapter 2, Section 291, and Title 19, Chapter 3, Section 211, all of the Code of Alabama of 1975. They averred that the said Marion J. Jones, Jr. had been held in contempt of court by the Judge of Superior Court of Muscogee County, Georgia, and that he had received a sentence of twelve months hard labor for Russell County and in addition thereto had received fines in two other criminal cases in the Russell County Circuit Court. They averred that he had many law suits filed against him on the civil side of the Circuit Court of Russell County and that Judgments had been taken and filed for record in the Office of the Judge of Probate of Russell County, Alabama, and that only a few of these judgments had been paid. The Court finds that there was no testimony to the contrary regarding the payment of these judgments and further that court costs had not been paid in any of the cases filed by Mr. Jones in the Circuit Court of Russell County, except for one filed by him in 1978 against the Russell County District Attorney.
“The Court also found that Marion J. Jones, Jr. had been found guilty of three criminal violations and that in one of these cases he had received a sentence of twelve months hard labor for Russell County.
“The Court, having considered the oral testimony, and the exhibits submitted, is of the opinion and finds that the Court has jurisdiction over the parties and of the cause of action and that the Petitioners are entitled to relief prayed for in their Petition.”

The removal of a trustee is a matter which rests in the discretion of the trial court and on appeal our scope of review is limited to determining whether the court has abused its discretion. In re Estate of Amason, 369 So.2d 786 (Ala.1979). Jones cites Amason for the proposition that the removal of a trustee is a drastic action which should only be taken when the estate is actually endangered and intervention is necessary to save trust property. From an examination of the record and the order of the circuit court, we cannot say that the court abused its discretion. Based on the evidence before it, the court could reasonably have determined that Jones was an unsuitable person to execute the trust, that the estate was in danger, and that intervention was necessary to save the trust property.

Accordingly, the orders of the Probate and Circuit Courts of Russell County, removing Marion J. Jones, Jr., as the executor and trustee of the Estate of Glenn W. Anthony, are hereby affirmed.

AFFIRMED.

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


author: PER CURIAM. JONES, Justice MADDOX, Justice EMBRY, Justice

text:
    Joe L. YATES, Individually; Florene Yates, Individually v. Ira V. Wayne GUEST, as Executor of the Estate of Connie Gibson Guest. Richard YATES v. Ira V. Wayne GUEST, as Executor of the Estate of Connie Gibson Guest.
    80-11, 80-43.
    Supreme Court of Alabama.
    June 4, 1982.
    Rehearing Denied July 9, 1982.

      Thomas M. Galloway and William H. Sis-son of Collins, Galloway & Smith and Peter F. Burns of Morgan & Burns, Mobile, for appellants.
    M. A. Marsal of Seale, Marsal & Seale and Robert H. Allen of Nettles, Cox & Barker, Mobile, for appellee.
   PER CURIAM.

Appellee Ira V. Wayne Guest, as executor of the estate of Connie Gibson Guest, deceased, recovered a $200,000.00 judgment through a wrongful death suit against appellant Joe L. Yates. In order to collect the judgment Guest levied on and sold all of Yates’s dump trucks, but the proceeds from the sale were insufficient to satisfy the judgment, leaving $150,000 of the judgment unsatisfied.

On January 21, 1977, approximately eight months after the judgment, Joe Yates and Florene Yates conveyed two parcels of land to their son, appellant Richard A. Yates, and Florene Yates. Joe Yates and his wife Florene had owned this land as tenants in common with rights of survivorship prior to the conveyance. The effect of the conveyance was to transfer Joe Yates’s interest to his son Richard with Florene Yates’s interest remaining the same. The two parcels of land contained dirt pits from which Joe Yates extracted dirt, soil, sand, clay, and minerals for sale.

Guest, as a judgment creditor of Joe Yates, filed suit seeking to set aside the conveyance of Joe and Florene Yates to Richard and Florene Yates as fraudulent in that the conveyance was made to avoid levy and sale by Guest. After a non-jury trial, the court entered a judgment in favor of Guest. The trial court found that there was no consideration for the conveyance and that it was made with an intent to hinder, defraud, or delay Guest in his collection of the judgment entered against Joe Yates. The trial court declared the conveyance void, ruled that the interest of Joe Yates is subject to execution and sale for satisfaction of the judgment obtained by Guest against Joe Yates, and ordered Richard Yates to account to Guest for the value of all dirt, sand, clay, soil, and minerals removed from the two parcels of real estate after the conveyance. The court retained jurisdiction pending the filing of an accounting by Richard Yates for the purpose of determining the correctness of the accounting and in order to enter a judgment in favor of Guest for the value of the dirt, sand, clay, soil, and minerals removed after the conveyance.

Separate notices of appeal were filed by Joe Yates, Florene Yates, and Richard A. Yates. The appeals were consolidated by this Court.

Initially appellants contend that the court erred in determining that the convey-anee of the dirt pits was fraudulent and due to be set aside. Recently, in J. C. Jacobs Banking Co. v. Campbell, 406 So.2d 834 (Ala.1981), this Court gave an extensive treatment of the necessary elements and burden of proof in an action seeking to set aside a conveyance as fraudulent pursuant to Code 1975, § 8-9-6. The principles of law enunciated in that opinion control our review of this case.

Under the authority of Campbell, particularly as it relates to setting aside a conveyance for actual fraud regardless of the adequacy of consideration given, we affirm that portion of the judgment which concludes that the conveyance of the two dirt pits was fraudulent as to Guest, and due to be set aside. Regarding the relief granted, we will further comment.

The judgment of the trial court did not attempt to define the property interest of Joe Yates which it declared subject to levy and sale under execution by Guest and on this point the parties sharply disagree. To obviate further litigation in this case, we will undertake to define that interest.

Guest maintains that he is entitled to proceed against an undivided one-half interest in each of the two dirt pits. Appellants, on the other hand, contend Guest may only reach a life estate in an undivided one-half interest in each of the properties, relying on the authority of Brown v. Andrews, 288 Ala. 111, 257 So.2d 356 (1972).

The facts in Brown involved a conveyance by a husband and wife to a straw man, who in turn conveyed the property solely to the wife in a scheme to prevent a judgment creditor of the husband from reaching that property in satisfaction of the judgment. After declaring void, and setting aside, both conveyances as fraudulent and entering a money judgment against the husband, the trial court held that the husband and wife owned the property as joint tenants with rights of survivorship, according to the ten- or of the deed by which they originally acquired title. In addition, the trial court impressed a lien upon the property against the husband’s interest to secure the indebtedness for which the judgment was rendered.

On review of the issue pertaining to the property interest of the husband subject to levy and sale under execution, this Court modified the lower court’s decree so as to set aside the conveyance of, and impress the lien upon, only an estate for the life of the husband in an undivided one-half interest in the property. See, Brown v. Andrews, 288 Ala. 111, 257 So.2d 356 (Ala.1972).

The rationale employed by the Court in Brown to reach this conclusion was largely premised on our earlier decision in Bernhard v. Bernhard, 278 Ala. 240, 177 So.2d 565 (1965). In Bernhard this Court held that language in a deed conveying property to grantees as joint tenants with rights of survivorship effectively created a tenancy in common with cross-contingent remainders in each of the tenants. The Court further held that the cross-contingent remainders were indestructible, except with the consent of both cotenants.

Adopting this analysis from Bernhard, the Court in Brown held that the husband never possessed an undivided one-half interest in the property in question but rather had a life estate in an undivided one-half interest with a contingent remainder.

The Court then observed that the statutory scheme for executions did not permit execution on contingent remainders. To this the Court added:

“It follows that since [the husband’s] contingent remainder could not have been subject to levy and sale under an execution, or subject to the judgment lien, the appellants were not injured by [the husband’s] conveyance of this contingent remainder and, hence, cannot complain about its conveyance. Consequently, the only interest that was set aside and which is subject to levy and sale under execution, is the estate of [the husband] for his life in an undivided one-half of the property.”

288 Ala. at 115, 257 So.2d 356.

In response to Yates’s contention that Brown clearly controls our review of this case, the assertion could be made that Brown was implicitly overruled by Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972). In Nunn v. Keith, this Court expressly overruled the earlier decision of Bernhard that the language in a deed granting property to joint tenants with rights of survivorship creates a tenancy in common with indestructible cross-contingent remainders. Nunn v. Keith held, inter alia, that the joint tenancy with rights of survivorship permitted by statute in Alabama was intended by the Legislature to be destructible as at common law. Accordingly, this Court held that each joint tenant had the independent right to petition the Court for partition or sale for division, or to otherwise dispose of his or her interest in the property.

As mentioned earlier, the opinion in Brown was largely premised on Bernhard. Given the fact that Bernhard was expressly overruled by Nunn v. Keith, it follows that the argument could be made that Brown no longer applies. Indeed, the position urged by Guest was assumed in Granite Equipment Leasing Corp. v. Smith Pride Foods, Inc., 431 F.Supp. 490 (N.D.Ala.1977), where the federal district court said:

“Nunn v. Keith expresses the law of Alabama. It was recently followed in Clements v. Wheeler, 294 Ala. 187, 314 So.2d 64 (1975), and in Jones v. Moore, 295 Ala. 31, 322 So.2d 682 (1975). The construction whereby the leviable interest of a joint tenant with right of survivor-ship was limited to a life estate has been conclusively repudiated, and if Brown v. Andrews were to come on for decision today, there could, in the Court’s opinion, be but one result. There is no longer any reason to limit a joint tenant’s leviable interest to a life estate. Execution must proceed on the basis that defendant’s estate is a fee simple absolute.”

431 F.Supp. at 492.

This analysis from Granite Equipment Leasing appears clearly applicable to the case under consideration, except for one circumstance. The instrument by which Joe and Florene Yates originally acquired title to the dirt pits granted the property to them as “tenants in common with rights of survivorship,” while the granting language with which the courts were concerned in Bernhard, Brown, Nunn, and Granite Equipment Leasing was “joint tenants with rights of survivorship.”

Recently, in Durant v. Hamrick, 409 So.2d 731 (Ala.1981), this Court made an analysis of the historical and present distinction in Alabama between joint tenancies with rights of survivorship and tenancies in common with rights of survivorship. In Durant, this Court announced its position that the holding in Nunn v. Keith does not extend to “tenancies in common with rights of survivorship,” and that such granting language creates a tenancy in common for the joint lives of the co-tenants with indestructible cross-contingent remainders.

What brings this case under the Durant ruling is that the original deeds conveyed the two parcels of land to Joe Yates and Florene Yates “as tenants in common with equal interest, for the period or term they both survive, and to the survivor of them at the death of the other .... ”

As stated previously, the trial court was correct when it set aside the conveyance. This means, according to the statute, the entire conveyance; thus, Joe L. Yates and Florene Yates own the two parcels of real estate as tenants in common for the joint lives of the co-tenants with indestructible cross-contingent remainders. This gives Guest the opportunity to levy against the interest of Joe Yates in the two parcels. The question becomes one of determining the nature of the property interest of Joe Yates which is subject to levy and sale. Joe owns an undivided half interest for his life and a contingent remainder in the whole in each of the two parcels. Under our statute and case law contingent remainders are not subject to levy and sale. Code 1975, § 6-9-40; Brown v. Andrews, 288 Ala. 111, 257 So.2d 356 (1972); Shrout v. Seale, 287 Ala. 215, 250 So.2d 592 (1971). Code 1975, § 6-9-40, provides: “Executions may be levied: (1) On real property to which the defendant has a legal title or a perfect equity, ... or in which he has a vested legal interest in possession, reversion or remainder, whether he has the entire estate or is entitled to it in common with others . .. . ” Therefore, Joe’s life estate in an undivided one-half interest in each parcel of land is all that is presently subject to levy and sale.

The final issue concerns the Court’s order that Richard Yates account to Guest for the value of all dirt, sand, clay, soil, and minerals removed from the property after the date of the fraudulent conveyance.

Appellants contend that an accounting is a chose in action, and hence, not subject to execution. Because an accounting is not subject to execution, they argue, the trial court had no authority to order that one be made in favor of Guest.

In this regard, it is obvious that appellants mistake the effect of the action of the trial court in ordering an accounting. The purpose of the accounting is to account for the value of property removed from the situs of the real estate.

That a court of equity has the authority to order an accounting from a fraudulent grantee is clear from the following passage found in American National Bank & Trust Co. v. Powell, 235 Ala. 236, 178 So. 21 (1937):

“Of course, so long as the property remains in the possession of the fraudulent grantee, she, it would seem, is not subject to a personal judgment, in a court of equity, in favor of the creditors of the grantor. The proper course is for such creditors to pursue the property and fasten their lien thereon. But the fraudulent grantee occupies the position of trustee and is liable to account therefor as a trustee for such creditors. The trust is imposed by law, and is imposed on the donee in invitum. Bryant v. Young, Hall et al., 21 Ala. 264, Lockard v. Nash, 64 Ala. 385, and Dickinson et al. v. National Bank of Republic, 98 Ala. 546, 14 So. 550.
“If the grantee, law imposed trustee, has disposed of the property, a court of equity will require her to account therefor, and, to the extent necessary to satisfy the pursuing creditor’s claim, such grantee will be held liable for the full value of the property recovered by him, regardless of what he may have paid for it. 27 C.J. 669, 855; Cottingham v. Greely Barnham Grocery Co., 129 Ala. 200, 30 So. 560, 87 Am.St.Rep. 58; Dickinson et al. v. National Bank, etc., supra; Muskegon Valley Furniture Co. v. Phillips & Bro., 113 Ala. 314, 21 So. 822, and Bryant v. Young, Hall et al., 21 Ala. 264, supra.
“And it seems to be the general rule that the fraudulent grantee, if he has sold the property, must account for its fair and reasonable value at the time and place he received it, with interest. Musk-egon Valley Furniture Co. v. Phillips & Bro., supra.

235 Ala. at 246, 178 So. 21. Therefore, the trial court was acting within the scope of its power when ordering the accounting. The conveyance to Richard and Florene Yates was declared to be null and void; therefore, Richard Yates must account for the value of any dirt, sand, elay, soil, or minerals removed from the land from the time of the fraudulent conveyance. Thus Guest as judgment creditor can recover from Richard Yates the value of any dirt, sand, clay, soil, or minerals removed from the two parcels of real estate pursuant to the life estate of Joe Yates in an undivided one-half interest in each of the parcels.

The judgment of the trial court is hereby modified to conform with this opinion holding that the life estate in an undivided one-half interest in each parcel of land owned by Joe L. Yates is now subject to execution and sale for satisfaction of the plaintiff’s judgment, and the accounting will allow Guest to take the appropriate action against Richard Yates to recover the value that Richard Yates may have received from the sale and disposal of the interest in the land fraudulently conveyed to him by Joe Yates. In all other respects the judgment is affirmed.

AFFIRMED AS MODIFIED.

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

JONES, J., concurs specially.

MADDOX, FAULKNER, EMBRY and ADAMS, JJ., dissent.

JONES, Justice

(concurring specially).

My belief that we have an obligation to develop clear principles of law to guide the attorneys of this state, who must advise their clients of their rights and alternatives under our legal principles, overrides my dissent in Durrant v. Hamrick, 409 So.2d 731 (1981), and I concur with the majority opinion.

MADDOX, Justice

(dissenting).

I must respectfully dissent from the majority’s opinion that the interest in the land held by the debtor is not subject to levy and sale by a creditor when the debtor allegedly conveys that interest to defraud his creditor. The holding in this case, in my opinion, is contrary to the rule of law as set forth in Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972). In this regard, see my dissent in Durant v. Hamrick, 409 So.2d 731 (Ala.1981); also, see my dissent in Brown v. Andrews, 288 Ala. 111, 257 So.2d 356 (1972), quoted from extensively by Mr. Justice Embry in his dissent.

EMBRY, Justice

(dissenting).

I must dissent from the majority’s holding today. By restricting plaintiff to levying only on a life estate, the majority, in effect, condones Joe Yates’s fraudulent scheme to prevent plaintiff from satisfying his judgment by permitting the value of Yates’s contingent remainder to escape plaintiff’s reach.

This is contrary to the fundamental and established rule that a wrongdoer cannot profit from his wrongful acts. Or stated otherwise, an innocent party may not be deprived of his property or other rights by another’s fraudulent conduct.

The inequities of the majority’s approach were considered and expressed by Justice Maddox in his dissent in Brown, the pertinent portions of which bear repetition here:

“The majority opinion holds that the conveyance of a contingent remainder, even if made for the purpose of hindering, delaying or defrauding a creditor, cannot be set aside by a creditor, since contingent remainders are not subject to levy and sale under execution. By requiring that the interest which a debtor holds be a vested interest, subject to levy and sale and subject to a judgment lien, the majority has unduly limited the provisions of Title 20, § 7, Code of Alabama 1940, Recomp., 1958, which provides:
‘All conveyances, or assignments in writing, or otherwise, of any estate or interest in real or personal property, and every charge upon the same, made with intent to hinder, delay, or defraud creditors, purchasers, or other persons of their lawful suits, damages, forfeitures, debts, or demands; and every bond, or other evidence of debt given, suit commenced, decree or judgment suffered, with the like intent, against the persons who are or may be so hindered, delayed, or defrauded, their heirs, personal representatives and assigns, are void.’ (Emphasis supplied.)
“This Court has said that transactions to defeat creditors are viewed with disfavor and that this statute, which provides that conveyances in writing of any estate or interest in real property which are. made with intent to hinder, delay or defraud creditors of their lawful debts are void, should be liberally construed. Taylor v. Peoples Fertilizer Co., 270 Ala. 243, 117 So.2d 180 (1959).
“The majority holds that since the creditor could not levy upon the contingent remainder interest at the time it was conveyed by the debtor, that the creditor is not prejudiced. I must strongly disagree. But for the conveyance by the debtor of his contingent remainder, he could have become possessed of the entire property upon the death of his wife, an event which is certain to occur, and which could occur during the time when the creditor’s judgment is still viable and unsatisfied.
“The debtor may die first, and the creditor would therefore realize nothing from having the conveyance of the contingent remainder set aside, but the death of the debtor would be the event which removed the contingent remainder interest out of the creditor’s reach, not the fraud of the debtor.
“The debtor’s contingent remainder interest must have had some value or the debtor would not have tried to get it out of his hands. If his contingent remainder interest did not have value, why does he object to having his conveyance of it set aside? The answer is obvious. As the matter now stands, no matter when his wife dies, he will never get the entire property. That was, no doubt, very important to him, because the trial court found that the conveyance of his interest was made with the intent to hinder, delay or defraud his creditor. I regret this Court gives legal approval to his scheme. [Footnote omitted.]”

I am persuaded that the view expressed in this dissent represents the more equitable approach, and is in accord with the rule which views with disfavor transactions entered into for the purpose of defrauding creditors. Taylor, supra.

I would hold that the fraudulent conveyance by the debtor had the effect of destroying the tenancy in common with rights of survivorship. I would further hold that when the fraudulent conveyance was set aside, that which was restored to Yates was a separate, single, fee simple one-half interest in the real property subject to execution, levy and sale to satisfy, to the extent possible, the judgment creditor’s debt. Because this is a dissent, I will not burden the reader with all the valid bases for a holding as I propose: as, for example, estoppel, etc.

FAULKNER, J., concurs.

      . There were two separate appeals filed concerning the facts in Brown, resulting in two opinions by this Court. In the first opinion this Court affirmed, but declined to define the interest subject to the judgment lien, since there was no adjudication of that issue in the trial court’s decree. See, Brown v. Andrews, 281 Ala. 598, 206 So.2d 607 (Ala. 1967). Further litigation concerning the property interest of the husband subject to levy and sale under execution ensued, resulting in a second appeal. The review of this issue is found in Brown v. Andrews, 288 Ala. 111, 257 So.2d 356 (Ala.1972). All references in this opinion to Brown v. Andrews are to the second Brown decision.


author: TORBERT, Chief Justice.

text:
    Jimmy MANESS and Wanda Maness v. ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE CO., INC., a Corporation, et al.
    80-653.
    Supreme Court of Alabama.
    June 25, 1982.

      James M. Sizemore, Jr., Sylacauga, for appellants.
    Barry N. McCrary, Talladega, for appel-lee Ala. Farm Bureau Mut. Cas. Ins. Co.
    Ralph D. Gaines, Jr. and William W. Goodrich of Gaines, Cleckler & Goodrich, Talladega, for appellee State Farm Mut. Auto. Ins. Co.
    W. J. McDaniel and Jasper P. Juliano of McDaniel, Hall, Parsons, Conerly, Scott & Lusk, Birmingham, for appellee Gen. Acc. Fire & Life Ins. Corp., Ltd.
   TORBERT, Chief Justice.

Jimmy and Wanda Maness appeal the decision of the trial court in a declaratory judgment action filed by appellee, Farm Bureau Mutual Casualty Insurance Company (Farm Bureau). The declaratory judgment action was filed to determine whether certain insurance policies obligated Farm Bureau to defend its insured in a personal injury suit (Case Number CV-79-056) brought by the Manesses.

In order to properly identify the parties and relationships involved in this appeal, a brief explanation of the circumstances surrounding the personal injury suit brought by the Manesses may be helpful.

Jimmy Maness, a volunteer fireman for the Sylacauga Fire Department, was injured on February 17, 1978, when the Weo-gufka Volunteer Fire Department truck somehow moved down an incline and pinned Maness between that truck and the Syla-cauga Fire Department Truck. Both trucks were parked and unoccupied. The Maness-es, alleging negligence, filed an action against Claude Bain Culver, Fire Chief of the Weogufka Volunteer Fire Department; Weogufka Volunteer firemen Steve Dyess and Harold Moore; and the Weogufka Volunteer Fire Department. Each of the individual defendants, Culver, Dyess and Moore, allegedly had one or more insurance carriers; one carrier was Farm Bureau, who initiated this declaratory judgment action.

The Manesses, as defendants in Farm Bureau’s declaratory judgment action, filed a motion, which was granted by the trial court, to add the other insurance carriers, as parties in this declaratory judgment action. Next, the Manesses filed a counterclaim against Farm Bureau, asking the court to determine whether Farm Bureau is obligated to defend its insured (Culver) in the Manesses’ original suit and to indemnify Culver for any judgment rendered against him. Cross-claims were then filed by the Manesses against Moore’s insurance carriers asking the trial court to determine whether each or all of the carriers were obligated to defend Moore in the personal injury suit and indemnify him for any judgment rendered against him. The trial court dismissed the cross-claims filed by appellants against Moore’s insurance carriers and held that the policy issued by Farm Bureau to Culver covering his mobile home did not provide coverage for the accident which had caused the injuries to Jimmy Maness. The insured, Culver, does not appeal.

This appeal by Jimmy and Wanda Maness deals with (1) the propriety of the dismissal of the cross-claims by the trial court and (2) the interpretation by the trial court of the Farm Bureau policy covering Culver’s mobile home.

The Cross-Claims

According to the Manesses, the purpose of filing the cross-claims was to allow all of the insurance carriers involved to resolve their coverage disputes in one action to avoid the situation of having the Farm Bureau declaratory judgment action decided and then having one of the other insurance carriers initiate another declaratory judgment action, concerning its particular policy, thus again enjoining the Manesses from proceeding with their personal injury action.

While the Manesses’ argument is persuasive, the request by them is in conflict with Alabama law. The issue is not a simple cross-claim issue under Rule 13(g), Alabama Rules of Civil Procedure; instead, the issue is whether a plaintiff in a personal injury action who has been made a defendant in a declaratory judgment action brought by one insurer can in effect bring a declaratory judgment action against other insurers by using cross-claims.

The Manesses contend that Code 1975, § 27-23-1, gives them an interest in the outcome of any coverage disputes between alleged tortfeasors and their insurance carriers. While there have been no decisions particularly pertaining to §§ 27-23-1 and -2 as presently written, these two sections are substantially the same as Code 1940 tit. 28, §§ 11 and 12 (see, editor’s notes to §§ 27-23-1 and -2), and thus the cases under these predecessor statutes are controlling.

Under Alabama law, the injured party acquires a vested interest (secondary) in the nature of a hypothecation of the insured’s rights under the policy. Fleming v. Pan American Fire & Cas. Co., 495 F.2d 535 (5th Cir. 1974). See also, Macey v. Crum, 249 Ala. 249, 30 So.2d 666 (1947); George v. Employers’ Liability Assur. Corp., 219 Ala. 307, 122 So. 175 (1929).

“We have held along with the generally accepted view that the right and remedy provided for in sections 8376 and 8377, Code [1923] (not influenced by other provisions of the law or contract), did not extend to plaintiff a primary claim as a contractee of such a policy of insurance with a power to sue to enforce it independent of the status created between the assured, against whom judgment had been rendered, and his insurance carrier.... ”

Employers Ins. Co. of Alabama v. Johnston, 238 Ala. 26, 30, 189 So. 58 (1939). See also, McDowell v. United States Fidelity & Guaranty Co., 260 Ala. 412, 416, 71 So.2d 64 (1954).

Once an injured party has recovered a judgment against the insured, the injured party may compel the insurer to pay the judgment. The injured party, however, can bring an action against the insurer only after he has recovered a judgment against the insured and only if the insured was covered against the loss or damage at the time the injured party’s right of action arose against the insured tort-feasor. Fleming v. Pan American Fire & Cas. Co., 495 F.2d at 540.

We hold that the cross-claims of the Manesses against the insurance carriers are a form of direct action against an insurance carrier and not allowable under Alabama law because an injured party cannot bring a direct action against the insurance carrier, absent a final judgment against its insured, see, Code 1975, §§ 27-23-1 and -2. Therefore, the dismissal of the cross-claims by the trial court was proper.

The Farm Bureau Mobile Home Policy

The trial court in its order stated:

“It is therefore, Ordered, Adjudged and Decreed, and the Court does hereby Declare, that the injuries sustained by Maness which are the basis of his claims set forth in case number CV-79-056 pending in this Court, and set out in the aforesaid stipulation, were incurred under and arose out of activities, conduct, facts, and circumstances which are not covered by ... (b) the Alabama Farm Bureau Mobile Home Policy (Plaintiffs’ exhibit 2) insuring Claude Bain Culver. In accord with the foregoing, it is further Ordered, Adjudged, and Decreed that Plaintiff herein has no duty to defend ... Claude Bain Culver, or pay any benefit, compensation or indemnity, in connection with, with respect to or arising out of the aforesaid injuries sustained by Jimmy Maness.”

During oral argument, counsel for the Manesses expressed the issue as follows:

“Does language excluding the ownership, maintenance, operation, use, loading and unloading of a motor vehicle apply under these conditions:
“(1) The insured has been sued for negligently performing or failing to perform his duties as volunteer fire chief;
“(2) These duties included training volunteer fireman to operate and handle certain fire department equipment;
“(3) Untrained or improperly trained firemen permitted a parked truck not on the insured’s premise to move down a hill and injure one of the plaintiffs; and
“(4) The insured was not present at the time of the injury.”

This issue posed by the Manesses is whether the injury to him was excluded from coverage. However, the question is more basic. It is not whether the exclusions apply but whether the property insured under the policy was involved in the accident which caused the injuries to Maness.

The policy sets out the property covered as the following:

“A. Property Covered.
“1. Mobile Home.
“Coverage for the mobile home described in the Declaration includes:
“a. Such parts, equipment and accessories as are originally built into and form a permanent part of its structure and in addition, steps, and oil or gas drums or tanks connected to and furnishing heating or cooking fuel to the trailer.
“b. Such appliances, furniture and equipment as were furnished by the manufacturer or dealer as standard equipment with the trailer, or described in the certificate of origin or sales invoice delivered to the Named Insured, were included in the value upon which premium is paid, and remain part of the trailer at the time of loss. Subsequent replacements of the foregoing shall also be included if they remain part of the trailer at the time of loss, “c. An outside radio or television antenna or tower located within 25 feet of the trailer and connected to a set located in the trailer or in an attached room or cabana, or on a patio immediately adjoining the trailer, but to the extent of $50 in value only.
“2. Adjacent Structures and Equipment.
“This coverage includes awnings, shelters, cabanas, porches, water pumps and air conditioners attached to (or being transported in) and used in connection with the trailer and described in the Declarations in this policy to the extent of their actual cash value but not exceeding the amount shown for such items under “Limit of Liability” in the Declarations.
“3. Personal effects.
Coverage for personal effects includes personal property owned, worn or used by an Insured and usual or incidental to the occupancy of the mobile home as a dwelling. It does not include adjacent structures and equipment, as described in A.2. above: animals; birds; automobiles; miscellaneous motor vehicles; vehicles licensed for road use; aircraft; property of roomers or boarders not related to an Insured; money or currency, deeds, documents, records, bills, notes, securities, evidences of debt, articles carried or held as samples, or for sale, or for delivery after sale, or for rental to others; property pertaining to a business or occupation of an Insured; and property which is separately described and specifically insured in whole or in part by any other insurance.
“B. Perils Insured Against.
“1. Mobile Home and Adjacent Structures and Equipment.
“a. Comprehensive Protection. Under this coverage, the Company will pay for loss of or damage to the property described in subparagraph A.I., Mobile Home, and A.2. Adjacent Structures and Equipment, occurring during the policy period when such loss or damage is caused directly, suddenly and accidentally by any peril except collision. Damage resulting only from leakage of rain, sleet or snow shall not be deemed direct and accidental and is not intended to be covered under this paragraph.
“b. Collision Protection (including Upset). Under this coverage, the Company will pay for loss of or damage to the properiiy described in subparagraph A.I., Mobile Home, when such loss or damage is caused directly, suddenly and accidentally by collision.
“(1) Where full term protection is indicated in the Declarations, this protection continues throughout the term of the policy.
“(2) Where trip collision only is shown in the Declaration, or by separate endorsement, this protection continues only for the number of days indicated beginning at 12:01 A.M. on the commencement date shown or at the date and hour shown on the endorsement.
“2. Personal Effects.
“a. Under this coverage, the Company will pay for loss of or damage to the property described in subparagraph A.3., Personal Effects, occurring during the policy period while such property is within the mobile home, when such loss or damage is caused directly, suddenly and accidentally by
“(1) Fire or lightning, except that damage which is confined to scorching is not covered.
“(2) Explosion; smoke or smudge (but not the gradual accumulation of any oily or greasy substance or film) resulting from any sudden, unusual, and unexpected event.
“(3) Windstorm (meaning a high wind of extraordinary and unusual violence, or tornado, hurricane, cyclone or typhoon), hail, earthquake, landslide, flood or other water rising from outside the mobile home; rain, snow or sleet, driven through roof or wall openings made by direct action of wind or hail. Except as specifically included heretofore in this paragraph (3), damage from rain, sleet, or snow, whether or not wind driven, is not covered.
“(4) Riot or civil commotion; malicious mischief and vandalism perpetrated by a person or persons other than a member of Named Insured’s household.
“(5) Missiles propelled or objects falling from outside the mobile home or insured structure; forced landing of aircraft.
“(6) Collision of the mobile home with another object outside the mobile home.
"b. In addition, protection is extended, to the extent of 10% of the dollar limit of liability stated for this coverage in the Declaration but not exceeding $500, to personal effects which are not within the mobile home, where such loss is caused directly and accidentally by fire or lightning as defined and limited above, earthquake, landslide, flood or other water rising from outside the mobile home, or the forced landing of aircraft.”

“Insurance contracts must be interpreted in keeping and consonant with the evident intention of the contracting parties as gathered from the instrument in its entirety,” Lingo v. Gulf Line Ins. Co., 32 Ala.App. 525, 528, 27 So.2d 697 (1946). The mobile home policy purchased by Culver was designed to insure Culver’s mobile home, the premises immediately around his mobile home, and its occupants when involved in activities related to the premises and areas adjacent to the premise. Premises being defined in the policy as “the mobile home described ... with the land upon which it rests while on blocks or leveling jacks with utilities connected and while not in transit, ... together with any private approaches under the exclusive control of the Named Insured ... . ” In Cooter v. State Farm Fire & Cas. Co., 344 So.2d 496 (Ala.1977), we ruled that the language of a homeowner policy excluded personal liability coverage for bodily injury arising out of the ownership and use of an automobile owned and operated by the insured. See, 344 So.2d at 499. Evidence of non-coverage under Culver’s policy in this case is more emphatic than the evidence presented in Cooter.

The property covered by Culver’s policy was not involved in the fire being attended to by Maness at the time of his injury. The fire was at a James Jack’s house in Coosa County. Culver was not even at the fire. Neither the fire nor the injuries to Maness occurred around the mobile home. Obviously, the policy covering the mobile home belonging to Culver did not insure Culver against liability under the facts in this case. The policy specifically excluded coverage of automobiles or miscellaneous motor vehicles presumptively operated by Culver while he was away from his mobile home. In this case neither Culver nor the mobile home insured by Farm Bureau was present when Maness received his injuries. While the possibility of Culver’s negligence as volunteer fire chief still awaits consideration in the personal injury suit, the policy covering his mobile home is not involved. The judgment of the trial court is affirmed.

AFFIRMED.

MADDOX, FAULKNER, JONES and BEATTY, JJ., concur.

      . Originally, there were also two automobile policies presented in the declaratory judgment action. Appellants in their reply brief admit that they do not challenge the trial court’s determination that Culver and Dyess were not due coverage under the automobile policies.

      . Rule 13(g), Alabama Rules of Civil Procedure, states:
      “A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.”


author: SHORES, Justice.

text:
    Hoyt BUTLER v. GAB BUSINESS SERVICES, INC., et al.
    81-269.
    Supreme Court of Alabama.
    June 25, 1982.

      J. A. Hornsby, Gadsden, for appellant.
    C. William Gladden, Jr. of Balch, Bing-ham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellees.
   SHORES, Justice.

Plaintiff/appellant Butler sued Pennsylvania General Insurance Company, Inc., GAB Business Services, Inc., and Roy Kuykendall, charging the defendants with having committed various forms of tortious conduct in connection with an alleged fire loss on his house.

After the ease had been pending for some time, Pennsylvania General and the plaintiff reached an agreement under which Pennsylvania General would pay the plaintiff $8,175.00. The trial court entered a “Consent Pro Tanto Judgment,” which contains the following language:

“Therefore, it is hereby CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court as follows:
“1. That Plaintiff, Hoyt Butler, by this pro tanto judgment have and recover against the Defendant, Pennsylvania General Insurance Company, Inc., the sum of $8,175.00 as a complete and full settlement and judgment of the Plaintiff’s claim against this Defendant arising out of fire loss suffered by Plaintiff on, to-wit, July 10, 1978, hereinabove mentioned which is described in the complaint in this case, as a final judgment by said Plaintiff against this Defendant. It is further understood and agreed that this pro tanto judgment by the Plaintiff against said Defendant is against only that Defendant, Pennsylvania General Insurance Company, Inc., herein set out and not against any other Defendant or Defendants who might be parties to this cause.
“2. That the pro tanto judgment in favor of Plaintiff fully and finally relieves and releases Defendant, Pennsylvania General Insurance Company, Inc., from any and all possible liability to any person, firm or corporation growing out of the fire loss occurring on, to-wit, July 10, 1978, to the home and dwelling place of the Plaintiff, Hoyt Butler, and which fire loss is the basis of the allegations of the complaint herein.
“3. That the Plaintiff shall retain the right and does so retain the right to proceed with the within litigation as against all other Defendants remaining herein to a conclusion of this litigation.
“DATED this 21st day of July, 1981.”

It is not disputed that this judgment has been paid and that the plaintiff has received the money.

Thereafter, the remaining defendants moved for summary judgment, asserting that satisfaction of the judgment constituted a discharge of the plaintiff’s claims against them. The trial court granted the motion. We affirm.

As the trial court correctly observed, this case is controlled by Maddox v. Druid City Hospital Board, 357 So.2d 974 (Ala.1978). In that case, the plaintiff sued Druid City Hospital Board and Parke-Davis and Company, Inc. A settlement was reached between the plaintiff and the hospital. Based upon the settlement agreement, the trial court entered a judgment in favor of the plaintiff and against the hospital in the amount of $4,500. The judgment entry expressly provided that issues as to defendant Parke-Davis were to be preserved. The money was paid into court and the plaintiff satisfied the judgment. This court affirmed a summary judgment in favor of Parke-Davis, saying through the late Justice Bloodworth:

“It is well settled in Alabama that while a party is entitled to full compensation for his injuries, there can be only one satisfaction therefor. Williams v. Colquett, 272 Ala. 577, 133 So.2d 364 (1961). If a plaintiff recovers judgment against one joint tort-feasor and obtains satisfaction of that judgment, this operates as a discharge of the other joint tort-feasor. Id.; Huey v. Dykes, 203 Ala. 231, 82 So. 481 (1919).
“... If plaintiffs judgment had not been satisfied, the other joint tort-feasor, Parke-Davis, would not have been discharged. Plaintiff further contends that such an absolute rule discourages settlements. Again, we cannot agree. Alabama courts will continue to look with favor upon settlements. Where a plaintiff reaches a settlement against one joint tort-feasor, his cause of action against the other joint tort-feasor will continue to exist so long as plaintiff does not satisfy the judgment. Likewise, it is the right of the injured party to accept satisfaction in part from one tort-feasor, release him, and proceed against the other. Such release operates in favor of such other only as satisfaction pro tanto. Steenhuis v. Holland, 217 Ala. 105, 115 So. 2 (1927).”

357 So.2d at 975-976.

The plaintiff in this case attempts to distinguish Maddox by arguing that the judgment against Pennsylvania General has not been satisfied. We cannot agree. It is undisputed that it has been paid and that the plaintiff has received the money. Whether a formal entry of satisfaction has been entered on the record cannot make a distinction in the rule announced in Maddox. Payment of a judgment is satisfaction thereof.

The parties here could have entered into a pro tanto release agreement and preserved the claims against GAB and Kuykendall. Steenhuis v. Holland, 217 Ala. 105, 115 So. 2 (1927); see, also, Conley v. Harry J. Whelchel Company, 410 So.2d 14 (Ala.1982). Such a release operates only as satisfaction pro tanto, but the acceptance by the plaintiff of payment of a judgment discharged those claims.

The judgment appealed from is affirmed.

AFFIRMED.

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


author: FAULKNER, Justice. ALMON, Justice

text:
    Mary E. HALL v. Lee Andrew McBRIDE, as Successor Executor of the Estate of William L. Hall, Deceased.
    81-69.
    Supreme Court of Alabama.
    June 30, 1982.

      E. Graham Gibbons of Reid & Gibbons, Mobile, for appellant.
    Charles Hoffman, Mobile, for appellee.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., amici curiae for appellant.
   FAULKNER, Justice.

. William Hall died on May 25, 1979. On July 3, 1979, his wife, Mary E. Hall, filed for letters of administration on William Hall’s estate, alleging he left no last will and testament. The letters of administration were issued on July 20, 1979. In August, Mr. Hall’s sister, Anne Hall McBride, filed a petition to admit the last will and testament of Mr. Hall. The probate Court of Mobile County admitted the will to probate. Mary Hall, the widow, filed a dissent from the will pursuant to Code 1975, § 43-1-15. Anne McBride filed a motion to strike the dissent.

The Honorable John L. Moore, Probate Judge of Mobile County, granted Mrs. Hall’s motion to strike the widow’s dissent. The judge granted the motion to strike on the grounds that § 43-1-15 makes an unconstitutional gender-based classification. The probate court also refused to extend § 43-1-15 to those persons who were not explicitly extended protection, namely, widowers. Mary Hall, the surviving spouse, appeals.

Mary Hall married the deceased in 1945. Mrs. Hall returned to college in 1963 or 1964, and had lived apart from her husband since that time — approximately seventeen years. Her income for the past few years has been approximately $15,000.00 annually. She designated herself as being single on her income tax returns for these years.

Two issues are raised on appeal: 1) Whether § 43-1-15 provides a constitutionally impermissible gender-based classification under the equal protection provisions of the United States and Alabama constitutions. 2) If yes, whether § 43-1-15 should be totally invalidated or whether the section should be expanded to provide benefits to the entire class of persons, surviving spouses.

It is clear that a statutory classification that distinguishes between males and females is “subject to scrutiny under the Equal Protection Clause.” Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). Nevertheless, the Supreme Court of the United States has had some difficulty in agreeing upon the proper approach and analysis in cases involving challenges to gender-based classifications. Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981). The major area of conflict has centered on the proper level of scrutiny to apply to a statutory classification which places a burden on males which is not shared by females. Id.

The test often enunciated by the Court for determining the constitutionality of a gender-based classification is whether the classification bears a “substantial relationship” to “important governmental objectives.” Id.; Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). In general, a statute will not be upheld if the statute makes “overbroad generalizations based on sex.” A statute which is based on the legislature’s misconceptions concerning the role of females in the home rather than in the “market place and the world of ideas” will not survive constitutional scrutiny. Craig v. Boren, 429 U.S. at 199, 97 S.Ct. at 457. A gender-based legislative classification carries “the inherent risk of reinforcing the stereotypes about the ‘proper place’ of women and their need for special protection.” Orr v. Orr, 440 U.S. at 283, 99 S.Ct. at 1113. “Thus, even statutes purportedly designed to compensate for and ameliorate the effects of past discrimination must be carefully tailored.” Id. A statute based on notions of “romantic paternalism” and which carry “the baggage of sexual stereotypes” cannot withstand constitutional scrutiny. Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1972).

On the other hand, the Equal Protection Clause does not “demand that a statute necessarily apply equally to all persons” or require “things which are different in fact ... to be treated in law as though they were the same.” Michael M. v. Superior Court of Sonoma County, 450 U.S. at 469, 101 S.Ct. at 1204 (quoting Tigner v. Texas, 310 U.S. 141, 60 S.Ct. 879, 84 L.Ed. 1124 (1940)). The Court has upheld statutes which the gender classifications “realistically reflect the fact that the sexes are not similarly situated in certain circumstances.” Id.; Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975); Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974). in

Alabama’s statutory scheme on descent and distribution permits a widow to dissent from her deceased husband’s will and take an amount equal to a widow’s intestate share in personalty, and her dower portion of realty. Code 1975, § 43-1-15. At common law, a widow who was not satisfied with the portion her husband gave her in his will, could seek a writ of dower unde nihil habiut against the tenant of the freehold. If she established her right to the writ, she assigned her dower to the sheriff. Finally, an action of ejectment was brought against the current land holder. See Dean v. Hart, 62 Ala. 308 (1878); McLeod v. McDonnel, 6 Ala. 236 (1844). The widow’s right to dower was in addition to the gifts or devises to the widow by her husband. Id. Section 43-1-15 and its predecessors changed the common law. The presumption is that a gift or devise by a husband in his will to his wife precludes the widow from receiving an intestate share.

The purpose of enacting § 43-1-15 is to protect the wife from a husband who would cut her from his will, leaving her with few or no assets for her support. See McGhee v. Stephens, 83 Ala. 466, 3 So. 808 (1887); McReynolds v. Jones, 30 Ala. 101 (1857).

“In the feudal system from which dower arose, the husband had complete control over family wealth; consequently^, the widow was forced to depend upon her deceased husband’s estate for support.” Comment, Reverse Sex Discrimination Under Alabama’s Law of Decedents’ Estates, 32 Ala. L.Rev. 135, 150 (1980); see Jones, Alabama Probate Law — Need for Revision of Intestate Provisions, 20 Ala.L.Rev. 121 (1967). The purpose of § 43-1-15 is to put the claims of the widow “beyond her husband’s control,” thus protecting her from being left with little or no means of support. McGhee v. Stephens, 83 Ala. 466, 3 So. 808 (1887); McReynolds v. Jones, 30 Ala. 101 (1857).

In order to withstand scrutiny under the Equal Protection Clause, this gender-based classification must serve “important governmental objectives and must be substantially related to achievement of those objectives.” Orr v. Orr, 440 U.S. at 279, 99 S.Ct. at 1111. Our next step is to examine the governmental objectives of the statutory scheme.

One obvious objective of the statute has its roots in romantic paternalism — protection of women because it is assumed that their role as wives and mothers leaves them financially helpless. The statute “effectively announce[s] the State’s preference for an allocation of family responsibilities under which the wife plays a dependent role, and as seeking for [its] objective the reinforcement of that model among the State’s citizens.” Orr v. Orr, 440 U.S. 279, 99 S.Ct. 1111. The United States Supreme Court has stated repeatedly that such an objective which is part of the baggage of sexual stereotypes presuming certain roles of males and females in the home and the working world cannot sustain the constitutionality of statutes. See, e.g., Kirchberg v. Feenstra, 450 U.S. 455, 101 S.Ct. 1195, 67 L.Ed.2d 428 (1981); Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981); Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979); Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1972). The statute, if it is to survive constitutional attack, must be validated on some other basis.

It may be asserted that, like Alabama’s gender-based alimony statutes, § 43-1-15, giving only a widow the right to dissent from the spouse’s will, serves to reduce the economic disparity between men and women which is the result of our long history of discrimination against women. Furthermore, it may be asserted that § 43-1-15 serves the purpose of assisting needy spouses. The United States Supreme Court has recognized that these are both important governmental objectives. See Orr v. Orr, 440 U.S. at 280, 99 S.Ct. at 1112; Califano v. Webster, 430 U.S. 313, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977); Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974).

The final step in our analysis under the Equal Protection Clause is to determine whether the classification contained in the statute is substantially related to the aforementioned important governmental objectives. We hold that it is not.

In general, gender is not “a reliable proxy for need.” Orr v. Orr, 440 U.S. at 281, 99 S.Ct. at 1112. The statute provides aid to women who are excluded from their husbands’ wills, but no aid to men who are destitute and who are inequitably excluded from their wives’ will. The statute also gives aid to widows who are not needy, to the exclusion of other needy devisees. Thus, the alleged purpose of the statute, to help needy spouses, could be fulfilled by a gender-neutral statute. “Where, as here, the State’s compensatory and ameliorative purposes are as well served by a gender-neutral classification as one that gender classifies and therefore carries with it the baggage of sexual stereotypes, the State cannot be permitted to classify on the basis of sex.” Orr v. Orr, 440 U.S. at 283, 99 S.Ct. at 1113.

In determining whether the classification is substantially related to the objective of reducing economic disparity between the sexes, we must ask “whether women had in fact been significantly discriminated against in the sphere to which the statute applied a sex-based classification, leaving the sexes ‘not similarly situated with respect to opportunities’ in that sphere.” Id. at 281, 99 S.Ct. at 1112 (quoting Schlesinger v. Ballard, 419 U.S. 498, 508, 95 S.Ct. 572, 577, 42 L.Ed.2d 610 (1975) (emphasis added). It is interesting to note that most commentators state that with few exceptions, the Alabama law of decedents’ estates favors the widow. See Comment, Reverse Sex Discrimination, supra, Holt, Intestate Succession in Alabama, 23 Ala.L.Rev. 319 (1971); Jones, Alabama Probate Law, supra.

The statute does not achieve the goal of eliminating the economic disparity between men and women in all cases. Some widows may defy the stereotypes and be more wealthy than their husbands, and thus not need the benefit of the statute. Likewise, some widowers may have few assets; yet they cannot receive benefits under the statutory scheme. In sum, the goal of reducing the economic disparity between men and women could be achieved with a gender-neutral statute, based on need.

“[T]he statutory structure and its legislative history [reveal] that the classification was not enacted as compensation for past discrimination.” Orr v. Orr, 440 U.S. at 281, n. 11, 99 S.Ct. at 1113, n. 11 (quoting Califano v. Webster, 430 U.S. at 317, 97 S.Ct. at 1194). It is clear that the widow’s right to dissent had its origin in a time when women had no property rights. Women needed some protection of the law to prevent their husbands from transferring all assets that would provide women with a means of support. This is no longer the case. Women may, and do, freely build separate estates and freely transfer assets. In many cases, women may accumulate more wealth than their husbands. Thus, the historical roots of the right to dissent do not indicate that reduction of economic disparity was the purpose of the statute.

We hold that Alabama’s statute permitting a widow to dissent from her husband’s will is invalid, as an impermissible gender-based classification. We now turn to the second issue of whether to expand the un-derinclusive class.

When a statute is defective because of underinclusion, a court has two alternatives:

1) The Court may declare the statute a nullity, and order that its benefits not extend to the class, and
2) The Court may extend the benefits of the statute to include those who are aggrieved by the exclusion.

This Court has permitted extension of the benefits of an underinclusive statute to the entire class on two occasions. Ransom v. Ransom, 401 So.2d 746 (Ala.1981); Orr v. Orr, 374 So.2d 895 (Ala.Civ.App.), writ denied, 374 So.2d 898 (Ala.1979). Nevertheless, in Peddy v. Montgomery, 345 So.2d 631 (Ala.1977), and Parker v. Hall, 362 So.2d 875 (Ala.1978), this Court refused to extend the statute to the excluded class members.

In Ransom v. Ransom, 401 So.2d 746 (Ala.1981), the Court stated the test for determining when to extend the coverage of a statute:

“The choice between invalidation of a statute or expansion of the scope of its applicability requires, of necessity, an ascertainment of the predominant legislative purpose underlying the statute’s enactment. [Citation omitted.] That is to say, given the nature and substance of the statute, its relevant economic, social, and historical implications, can it be concluded that benefits should be terminated to the class of persons whom the legislature intended to benefit... . ”

(Quoting Orr v. Orr, 374 So.2d at 897.)

Applying this test, we think that the legislative history and the nature of the statute are such that the statute should be invalidated, leaving to the legislature the right to determine what sort of legislation is necessary in this field.

As § 43-1-15 has been interpreted, it is intended to apply only to females. In Gray v. Weatherford, 227 Ala. 324, 149 So. 819 (1933), this Court stated that even though the statutory scheme “may in special cases, work injustices, besides denying to the husband the same power of disposition of his estate which the wife has, remedy is with the Legislature, not the courts.” The intent of the legislature, stated earlier in this opinion, was to prevent the husband from leaving the wife with no means of support. There is no indication that the legislature would favor including husbands in the class of persons who could dissent from a will.

Furthermore, the nature of the statute and the practical problems in applying the statute to husbands, mandate that the issue be left to the legislature. Under § 43-1— 15, the widow takes her dower interest in realty and her intestate share of personal property. What would the husband receive? Curtesy gives the husband a life estate in all of his wife’s real estate, and one half of her personalty. Section 43-3— 12. Nevertheless, dower is a one-third to one-half interest in realty only. Section 43-5-2, Code, 1975. Would a husband get a share equivalent to the wife’s dower interest and her intestate share? The measure of the husband’s interest is clearly a question which the legislature is better equipped to answer. The Alabama statutes on decedents’ estates are so complex and interwoven, that this court is ill equipped to tinker with their various parts, because doing so might have unanticipated and undesired effects on the entire statutory scheme.

Furthermore, the statute as it is now written does not differentiate between widows who are needy, and those who are not. The decision of what sort of provision should be made, and the standards for giving assistance to a needy spouse, are purely legislative decisions.

The purposes and legislative history distinguish this case from Orr v. Orr, 374 So.2d 895 (Ala.1979), and Ransom v. Ransom, 401 So.2d 746 (Ala.1981). In Orr, the Court stated that it encroached on the legislative function reluctantly. Only because of the importance of alimony, the volume of cases in which alimony was being sought, and the lack of time for the legislature to act, did the court choose to expand the benefits of the alimony statute to males. In the case of the widow’s right to dissent, there is no pressing need to ensure we have such a statute.

The widow’s right to dissent is also distinguishable from the homestead provision. Ransom v. Ransom, 401 So.2d 746 (Ala. 1981). In that case, it was clear that it would be the legislature’s intent to extend the benefits conferred by the statute to both sexes. We have no evidence of such an intent or any indication of how to extend the benefits under the present statutory scheme.

Therefore, the judgment of the probate judge striking the widow’s dissent is affirmed.

AFFIRMED.

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

ALMON, J., concurs specially.

SHORES, J., not sitting.

ALMON, Justice

(concurring specially).

In my dissenting opinion in Peddy v. Montgomery, 345 So.2d 631 (Ala.1977), I expressed concern with this Court’s approach in applying new and undeveloped constitutional standards to isolated state statutes without considering the impact on the entire statutory scheme of marital property rights. My plea was for judicial restraint at a time when these very issues were being nationally debated as a result of the proposed Equal Rights Amendment to the United States Constitution. This plea went unheeded by a majority of this Court. My concern was, and is, that many people will have their estate plans thwarted because of the piecemeal approach of the courts to this problem. Under our constitutional system these matters are peculiarly legislative in nature, and I consider judicial restraint, at times, to be extremely desirable.

The legislature, in April of this year, passed Act No. 82-399 (Regular Session, 1982). This Act takes effect January 1, 1983, and, among other things, deals with the elective share of surviving spouses. It would thus appear that women whose husbands die between the date of this decision and January 1, 1983, will not be able to dissent from their spouses’ wills, as widows have previously been able to do and as widows and widowers will be able to do after January 1, 1983. I would not begin to speculate on the possible retroactive application of this Court’s decision.

But be that as it may, the die is now cast and I see no need to dissent further. Therefore, I concur in the opinion of the Court.

      . The Alabama legislature recently enacted sweeping changes in our probate system, adopting much of the Model Probate Code. Section 2-201 of the new Alabama Probate Code deals with the elective share of the surviving spouse. The statute adds support to the proposition that the expansion of the class is beyond the abilities and the role of this Court. Section 2-201, Act. No. 80-329, provides:
      “(a) If a married person domiciled in this state dies, the surviving spouse has a right of election to take an elective share of the estate. The elective share shall be the lesser of:
      “(1) All of the estate of the deceased reduced by the value of the surviving spouse’s separate estate; or
      “(2) One-third of the estate of the deceased.
      “(b) The “separate estate” of the surviving spouse shall include:
      “(1) All property which immediately after the death of the decedent is owned by the spouse outright or in fee simple absolute,
      “(2) All legal and equitable interests in property the possession or enjoyment of which are acquired only by surviving the decedent, and
      “(3) All income and other beneficial interests (i) under a trust, (ii) in proceeds of insurance on the life of the decedent, and (iii) under any broad-based non-discriminatory pension, profit-sharing, stock bonus, deferred compensation, disability, death benefit or other such plan established by an employer.
      “(c) If a married person not domiciled in this state dies, the right, if any, of the surviving spouse to take an elective share in property in this state is governed by the law of the decedent’s domicile at death.”


text:
    Robert S. MOORE v. Morris Kendall MEGGINSON, etc.
    80-702.
    Supreme Court of Alabama.
    July 2, 1982.
    Nathan Friedlander of Marr & Friedlan-der, Mobile, for appellant.
    Noel J. Nelson and Christopher Knight, Mobile, for appellees.
   ALMON, Justice.

Plaintiff/Appellee Megginson brought this class action on behalf of himself and other owners of residences in Granate Estates Subdivision, seeking injunctive and declaratory relief against Appellant Robert Moore and against Terry and Mary Malone. Moore, the developer of Granate Estates, had sold two lots in the subdivision to the Malones, who were preparing to build an industrial warehouse and maintenance facility on the lots at the time suit was filed. In the original declaration of covenants and restrictions for Granate Estates recorded in 1973, Moore had reserved to himself the right to annul, cancel, or modify any of the restrictive covenants. In 1978 he amended the covenants to allow use of lots fronting on Schillinger Road (where the Malones’ two lots are located) for commercial purposes “for any type business that would be in keeping with the area and neighborhood.”

The trial court found that Moore’s exercise of his right to cancel or modify the restrictive covenants “must be reasonable, with due regard for the property rights and investments of the persons who relied upon the residential covenants which were in full force at the time of their purchase.” The court held “that the intended commercial use of lots numbered 60 and 61 of the Granate Estates subdivision is not in keeping with the area and neighborhood and such intended use violates the restrictive covenants of use which are applicable to the entire subdivision.” The Malones had cross-claimed for rescission of their contract of sale from Moore pursuant to a condition in the contract, and the trial court granted this relief.

We find that the trial court’s order and judgment falls within the rule announced by this Court in Wright v. Cypress Shores Development Co., [Ms. April 30, 1982] 413 So.2d 1115 (Ala.1982), and affirm.

AFFIRMED.

FAULKNER, EMBRY and ADAMS, JJ., concur.

TORBERT, C. J., concurs in the result.