author: ADAMS, Justice. ADAMS, Justice.

text:
    Ex parte TAYLOR COAL COMPANY, INC. (In re Willis A. Crocker, et al. v. All Coal, Iron, Ore, Gas, Oil, etc.)
    79-959.
    Supreme Court of Alabama.
    Feb. 27, 1981.
    Rehearing Denied July 2, 1981.

      Charles Nolen, Fayette, Tweedy, Jackson & Beech, Jasper, Wilbor J. Hust and Olin W. Zeanah of Zeanah, Donald & Hust, Tuscaloosa, for petitioner.
    Louis P. Moore of Holder, Moore & Gro-cholski, Fayette, Sam M. Phelps and Eugene A. Beatty of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for respondent.
   ADAMS, Justice.

This case comes to us on petition for writ of mandamus seeking a writ directed to the Honorable Clatus Junkin, Circuit Judge for Fayette County, Alabama, to enter an order which:

1. disqualifies Louis P. Moore in the firm of Holder, Moore and Grocholski from representing the defendants;

2. disqualifies Sam M. Phelps in the firm of Phelps, Owens, Jenkins, Gibson and Fowler from representing the defendants in this case;

3. disqualifies or enjoins Robert O. Si-gler, who is a party to this action, from participating in this case; and,

4. seals the entire record in this case.

The motion to disqualify was filed on May 29, 1980, by the petitioner, Taylor Coal Company, Inc. It had filed a complaint in intervention in this case on January 14, 1977. Its contention in the motion was that Louis Moore had in the past rendered title opinions to it on some of the land involved in this litigation prior to his employment by the defendants and, therefore, he, as well as his law firm, his co-counsel and Robert O.-Sigler are disqualified from participation in this lawsuit.

Discovery was had in connection with the motion and a hearing was held ore tenus on July 15, 1980. The trial judge denied the motion on August 30, 1980, and entered a detailed opinion in which he reached the following conclusions:

1. Neither Louis Moore, nor anyone in the firm of Holder, Moore and Grocholski, received any information of a confidential nature from Taylor Coal Company, Inc., during the period of time within which Mr. Moore was rendering title opinions to Taylor Coal Company, Inc.

2. Neither Sam M. Phelps, nor anyone in the firm of Phelps, Owens, Jenkins, Gibson and Fowler, received any such information from Louis Moore or any member of the firm of Holder, Moore and Grocholski.

3. There was no evidence of any reason for the disqualification of, or the issuance of an injunction against, Robert 0. Sigler, who is a party to this action.

4. Any relief to which the movant otherwise may have been entitled was barred by the doctrine of laches.

Jurisdiction

At first blush, it would appear that this controversy could be resolved very simply by denying the writ because of the narrow field of operation of a petition for writ of mandamus. The cases are replete with statements to the effect that mandamus does not lie to review a judge’s acts of discretion. East v. Todd, 284 Ala. 495, 226 So.2d 153 (1969); Assured Investors Life Insurance Company v. National Union Associates, Inc., 362 So.2d 228 (Ala.1978). Ordinarily, the matter should come to us by way of review on appeal, the judge below having exercised his discretion not to disqualify defendant’s counsel and his co-counsel. However, the petitioner has leveled serious charges of violations of Canons 4 and 9, Code of Professional Responsibility of the Alabama State Bar, against two lawyers licensed to practice before this Court. The impact of those violations on the present litigation is too important for us to ignore until these charges come to us on appeal. As far as we have been able to determine, the issues presented by the petitioner, surprisingly, are of first impression in this state and could taint the trial of the case below, unless resolved at this time. We said in Jones v. Alabama State Bar, 353 So.2d 508, 509 (Ala.1977), quoting from In re Evans, 42 Utah 282, 130 P. 217 (1913):

The summary jurisdiction which the court has over its attorneys as_pfficers-of_the court is also-tnvsEedNThat jurisdiction is inherent, continuing, and plenary, and exists independently of statute or rules of equity, and ought to be assumed and exercised as the exigencies and necessity of the case require, not only to maintain and protect the integrity and dignity of the court, to secure obedience to its rules and process, and to rebuke interference with the conduct of its business, but also to control and protect its officers, including attorneys.

Because of the urgency of the matters raised in the petition, we proceed to review them. Mandamus lies when no other adequate remedy is available. Ex parte Locke, 346 So.2d 419 (Ala.1977); Ex parte Osborn, 375 So.2d 467 (Ala.1979).

Unfortunately, due to the delicate interplay of ethical and equitable considerations in this case, a fairly comprehensive review of the facts involved in this protracted and checkered litigation will be necessary.

History of Litigation

This action was commenced on November 12, 1976, when Willis Crocker filed a bill to quiet title to certain mineral lands in Fa-yette County. The defendants are: (1) The Pearson Coal and Iron Company, (2) Robert O. Sigler, (3) Ensearch Exploration, Inc., and (4) a group which has been referred to as the “Pearson Heirs.” The “Pearson Heirs” include the following: Nancy Milliken Barth, Robert A. Blackstone, Elliott H. Bridges, James R. Bridges, Jr., Roberta Bridges Grimes, Constance Pike Hill, Rosa B. Hughes, Alexander Rutledge Pearson, Alfred Eubank Pearson, James Pugh Pearson, Jr., Robert H. Pearson, Edwin Bertram Pike, Jr., and Howard N. Rix; J. Michael Rediker, Charles R. Terry, R. H. Woodrow, Jr., and Henry B. Gray, III, as Trustees of the B. F. Roden estate; and the First National Bank of Hot Springs, Arkansas, as Trustee for Madelyn Thompson under the will of Fern O. Rix, deceased. Louis Moore, as attorney for these defendants, filed a motion to dismiss on December 17, 1976.

Taylor Coal Company filed a complaint in intervention on January 14,1977. The complaint alleged a leasehold interest through Willis Crocker and requested a determination of the validity of the lease. The complaint also sought a declaration that Taylor Coal Company was not liable in damages for any coal which the corporation mined from the lands involved. Mr. Moore then filed an answer on behalf of his clients on the grounds that the plaintiffs and the plaintiff intervenor had failed to join necessary parties. The Court ordered that the necessary parties be joined within thirty days. After three extensions of time for the purpose of adding these parties, the case was dismissed on July 22, 1977, for want of prosecution. The judgment was appealed to this Court. We dismissed the appeal on April 5, 1980, because the appellant failed to file a brief!

Sám M. Phelps entered the picture between July 22, 1977, and October, 1977, when Louis Moore associated him and the firm of Phelps, Owens, Jenkins, Gibson and Fowler for the purpose of filing a trespass action on behalf of the “Pearson Heirs” and Robert 0. Sigler. On November 18, 1977, Moore and Phelps filed such an action in the United States District Court for the Northern District of Alabama. The defendants in the case were Taylor Coal Company, Taylor and Son Coal Company, Walter Scott Taylor, Sr., and Walter Scott Taylor, Jr. The District Court dismissed the action on August 3, 1979, for lack of subject matter jurisdiction because Pearson Coal and Iron Company was a necessary party whose joinder would destroy diversity jurisdiction.

On the same day, Moore and Phelps refiled the action in the Circuit Court for Tuscaloosa County, Alabama. In the Tuscaloosa action the “Pearson Heirs” and Mr. Sigler asserted the same claims against Taylor Coal Company and the other defendants as were asserted in the previously dismissed federal action. In addition, Drum-mond Coal Company and Carlos Waid were made defendants in the Tuscaloosa action. On August 15, 1979, Taylor Coal Company filed an amendment to its complaint in intervention in this action (the Fayette action), despite the court’s July 22, 1977, order of dismissal for failure to join necessary parties.

On December 11, 1978, the Circuit Court of Tuscaloosa County, Alabama, dismissed the Tuscaloosa trespass action because of the pending action in Fayette County, Alabama. On December 12, 1979, Judge Jun-kin, in the Fayette County action, granted a motion to strike Taylor Coal Company’s amendment to the complaint in intervention because the action had been dismissed on July 22, 1977. Both of the judgments, namely, the judgment in the Tuscaloosa case and the judgment in the Fayette case, were appealed to us.

On February 8, 1980, we reversed and remanded both of these cases and stayed the Tuscaloosa action, pending the outcome of this case (the Fayette action). Taylor Coal Company, Inc. v. Pearson, 380 So.2d 779 (Ala.1980). Taylor Coal Company filed its motion to disqualify on May 29, 1980.

Actions of the Parties

Louis Moore rendered seven title opinions to Taylor Coal Company over a seven month period from September, 1975 to March, 1976. Only two of the opinions covered land involved in this action, namely, the first opinion, dated September 10, 1975, and the last opinion, dated March 3, 1976. In each opinion, Moore certified that the “Pearson Heirs” owned the mineral interests in the land.

Richard Willcutt, an employee of Taylor Coal Company first contacted Moore about giving a title opinion to Taylor Coal Company in September, 1975. He came to Moore’s office in Fayette, Alabama, requested an opinion and gave Mr. Moore an abstract of title prepared by Lucy Crutcher. Mr. Moore mailed the title opinion and the abstract to Taylor Coal Company’s office in Bessemer, but kept a copy of the opinion and a copy of the abstract in his office file. The extent of the attorney-client relationship between Mr. Moore and Taylor Coal Company was the rendering of title opinions based on public records in Fayette County.

Taylor Coal Company discussed the title opinions with other persons, and also made its records available to Drummond Coal Company and a company called “Natomis” during negotiations for the sale of stock of Taylor Coal Company.

The firm of Holder, Moore and Grochol-ski, in which Mr. Moore is a partner, has represented Ensearch Exploration, Inc., since 1971. Ensearch Exploration, Inc., is engaged in oil and gas exploration in Fa-yette County, Alabama. Mr. Moore has, during this period of time, consulted with Ensearch’s land agents and rendered title opinions for Ensearch, some involving the mineral rights in this suit.

Mr. Sigler came to Fayette County as a land agent for Ensearch and first contacted Mr. Moore concerning mineral ownership of the “Pearson Heirs” in November, 1975. After' Mr. Sigler had acquired an oil and gas lease for Ensearch Exploration, Inc., from the “Pearson Heirs,” he employed Mr. Moore about May 27,1976, to represent him individually. Pursuant to that employment, Mr. Moore prepared a coal lease and an assignment for Mr. Sigler to be signed by the “Pearson Heirs.” The document leased to Mr. Sigler certain mineral rights and assigned to him the right to institute an action for trespass involving the mineral interests. In connection with this representation, the trial court found that Mr. Moore relied solely on title information prepared and furnished to him by Mr. Sigler.

Taylor Coal Company knew that Moore had rendered a title opinion for it when Mr. Moore sent his opinion to Taylor Coal Company in 1975. Taylor Coal Company knew that Mr. Moore was representing Mr. Sigler and the “Pearson Heirs” in connection with the same property which was the subject of two of his opinions, when they filed a petition to intervene in the Fayette case on January 14, 1977.

This knowledge is indicated by the following facts. On October 15, 1976, Moore notified Charles Tweedy, by letter, that he was representing the “Pearson Heirs” and Mr. Sigler in connection with their trespass claim. Furthermore, he discussed the fact of his representation with Mr. Tweedy over the phone one or two months before he wrote the letter. Charles Tweedy is an attorney of record for Taylor Coal Company and Drummond Coal Company in the Fa-yette action. He also is a director of Drum-mond Coal Company and was a director of Taylor Coal Company from March 31, 1976, to April 30, 1978, when Taylor Coal Company was merged into Drummond Coal Company.

Furthermore, in May of 1976, William B. Long, on behalf of Drummond Coal Company, referred to the fact that a Fayette lawyer was representing Pearson Coal and Iron Company against Taylor Coal Company. Mr. Long, on behalf of Drummond Coal Company, made repeated demands of the former stockholders of Taylor Coal Company to honor the indemnity agreement to defend Taylor Coal Company against claims. These demands began in May, 1976, and ultimately resulted in litigation in federal court.

Taylor vCoal Company claims that it formally learned of Mr. Moore’s conflict of interest when Tommy Wells of the firm of Cabaniss, Johnston, Gardner, Dumas and O’Neal, discovered a title opinion written by Louis Moore, dated March 6, 1976, which had been misfiled. This discovery was made about April 29, 1980, and a motion to disqualify was filed on May 29, 1980.

Substantial Relationship Test v. Confidential Information Test

In Taylor Coal Company’s petition for writ of mandamus, two members of this Bar, Louis Moore and Sam Phelps, have been charged with violation of Canons 4 and 9, Code of Professional Responsibility of the Alabama State Bar. Canon 4 provides that a lawyer should preserve the confidences and secrets of his client. Providing for the preservation of confidences and secrets of a client, Disciplinary Rule 4-101(B), states:

Except as permitted by DR4 — 101(C) a lawyer shall not knowingly:
(1) Reveal a confidence or secret of his client.
(2) Use a confidence or secret of his client to the disadvantage of the client.
(3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.

Canon 9 provides as follows: “A lawyer should avoid even the appearance of professional impropriety.”

Although we have diligently searched, surprisingly, we have found a paucity of authority dealing with the issues involved herein. Two cases shed scant, but insufficient, light to allow us to reach our objective. In Lester v. Gay, 217 Ala. 585, 117 So. 211 (1928), plaintiff, a female, filed suit against a physician for assault and battery she claimed was committed by the physician while she was his patient. In attempting to reverse a judgment for the defendant, the plaintiff claimed that the lawyer for the doctor had been consulted by her husband with a view toward employment; had, therefore, acquired confidential knowledge of the plaintiff’s ease; and, consequently, should not have been allowed to represent the doctor in the civil suit. The lawyer testified that the matter had been mentioned to him by plaintiff’s husband, yet he had not advised plaintiff nor her husband, but merely said that “it was a case for the grand jury.” Under those facts, this Court found that the lawyer’s representation of the physician was not improper.

The second case is Hannon v. State, 48 Ala.App. 613, 266 So.2d 825 (Cr.App.1972). Appealing a robbery conviction, the defendant argued that the district attorney had been his lawyer while practicing in the public defender’s office and had secured confidential information concerning his case that the district attorney might have turned over to the assistant district attorney who prosecuted him. The Circuit Court held a full blown evidentiary hearing on this issue. The trial court, as well as the Court of Criminal Appeals, concluded that no confidential information had passed to the assistant district attorney and, therefore, the integrity of the trial was preserved.

It would seem from this scant authority that Alabama is inclined to embrace the so-called confidentiality test or fact-by-fact analysis to determine if there has been any impropriety in an attorney switching from one client to another where the same subject matter is involved. This we cannot clearly discern from the cases because there has been no mature consideration of the substantial relationship test. Indeed, the test has not even been mentioned.

The substantial relationship rule is probably best described in T. C. & Theatre Corporation v. Warner Brothers Pictures, Inc., 113 F.Supp. 265, 268-69 (S.D.N.Y. 1953):

[T]he former client need show no more than that the matters embraced within the pending suit wherein his former attorney appears on behalf of his adversary are substantially related to the matters or cause of action wherein the attorney previously represented him, the former client. The court will assume that during the course of the former representation confidences were disclosed to the attorney bearing on the subject matter of the representation. It will not inquire into the nature and extent. Only in this manner can the lawyer’s duty of absolute fidelity be enforced and the spirit of the rule relating to privileged communications be maintained.
To compel the client to show, in addition to establishing that the subject of the present adverse representation is related to the former, the actual confidential matters previously entrusted to the attorney and their possible value to the present client would tear aside the protective cloak drawn about the lawyer-client relationship. For the court to probe further and sift the confidences in fact revealed would require the disclosure of the very matters intended to be protected by the rule [protecting client confidences].

This substantial relationship rule is followed in the majority of the jurisdictions and was followed by the Fifth Circuit Court of Appeals in Woods v. Covington County Bank, 537 F.2d 804 (5th Cir. 1976). The confidentiality rule differs from the substantial relationship rule in that in the former, the protective cloak about the attorney-client relationship is pierced. Matters which transpired between the two are examined to determine what impact the information passed by the client to the attorney would have on the new attorney-client relationship.

Seemingly, this is what was done in the Gay and Hannon cases. In each case, the attorney was put on the stand and questioned about the information he received from the client, as well as what he had done with it. The court, in each instance, finding no compromise of the confidential relationship, held that the integrity of the proceedings was not impeached.

Unfortunately, the confidentiality rule has an inherent defect. It cannot be applied uniformly. In jury trial cases, the court could hold an in camera hearing to determine whether confidential information will be used. On the other hand, in many cases the trier of fact will be the judge. This is. the situation in this case — a bill to quiet title. To hold that the trier of fact would not be compromised under such circumstances borders on the ridiculous.

We hold that the substantial relationship test is preferable to the confidentiality test, thereby adopting the majority view and that of the Fifth Circuit Court of Appeals. This is not to say that whenever a substantial relationship is found the lawyer is automatically disqualified. See United States v. Miller, 624 F.2d 1198 (3d Cir. 1980); Church of Scientology of California v. McLean, 615 F.2d 691 (5th Cir. 1980); Central Milk Producers Cooperative v. Sentry Food Stores, Inc., 573 F.2d 988 (8th Cir. 1978); Novo Terapeutisk Laboratorium A/S v. Baxter Travenol Laboratories, Inc., 607 F.2d 186 (7th Cir. 1979). Although later overruled on the procedural issue of appealability, the case of State of Arkansas v. Dean Foods Products Company, Inc., 605 F.2d 380, 383 (8th Cir. 1979), still provides cogent reasoning appropriate to the instant case, viz.:

Disqualification of counsel, like other reaches for perfection, is tempered by a need to balance a variety of competing considerations and complex concepts. Disqualification in spasm reaction to every situation capable of appearing improper to the jaundiced cynic is as goal-defeating as failure to disqualify in blind disregard of flagrant conflicts of interest. Between these ethical extremes lie less obvious influences on the interest of society in the orderly administration of justice, on the interest of clients in candid consultation and choice of counsel, and on the interest of the legal profession in its representational soul.

We now turn to applying the law which we have enunciated to the facts in this case. Judge Junkin held that neither Louis Moore, nor anyone else in the firm of Holder, Moore and Grocholski received any information of a confidential nature from Taylor Coal Company during the period of time in which Mr. Moore was rendering title opinions to Taylor Coal Company. His holding, was based on his findings that the extent of the attorney-client relationship between Mr. Moore and Taylor Coal Company was the rendering of title opinions based on public records in Fayette County. An alternate basis for his holding was his finding that Taylor Coal Company discussed the title opinions rendered by Mr. Moore with other persons, as well as the Drummond Coal Company, during negotiations for the sale of stock of Taylor Coal Company. We disagree with the Court’s holding that no confidential information passed in the attorney-client relationship of Mr. Moore and Taylor Coal Company. Furthermore, we do not believe that this holding is indispensable to our determination that Mr. Moore did not violate Canons 4 and 9, Code of Professional Responsibility of the Alabama State Bar.

Once there is a determination of an attorney-client relationship, the attorney’s lips are sealed concerning information furnished to him, as well as the fruits of his labor. An attorney-client relationship is evidenced by the record here. Taylor Coal Company furnished Mr. Moore with an abstract of title prepared by Lucy Crutcher. Then, Mr. Moore examined the abstract, rendered an opinion, kept a copy of it and the abstract in his office file, rendered a bill and presumably got paid for his services. The attorney’s lips are sealed, even though the client may have discussed the subject matter of the attorney-client relationship with other persons, as was done here when Taylor Coal Company discussed the subject matter of the attorney-client relationship with Drummond Coal Company and others.

A substantial difference in the law is made between the attorney’s ethical re--sponsibility with reference to disclosure of confidential information and his privilege not to testify in court concerning his client’s secrets. In the latter instance, the attorney can be required to testify if it is demonstrated that the attorney and client discussed the subject matter of the attorney-client relationship in the presence of a third person. Doe v. A Corporation, 330 F.Supp. 1352 (S.D.N.Y.1971), aff’d, 453 F.2d 1375 (1972). However, this does not mean that the lawyer is allowed to reveal his client’s secrets, even after such a disclosure in court. It has been said that the confidential relationship between the attorney and client is the soul of lawyering. See Fred Weber, Inc. v. Shell Oil Company, 566 F.2d 602 (8th Cir. 1977) (later overruled on a procedural matter unimportant to the issues at hand). This relationship is the cornerstone of the legal profession, without which the adversary system would not work. The client simply must have the secure feeling that whatever he tells his lawyer or gives his lawyer, even though it may be public information, will be held by his lawyer inviolate.

Let us hasten to add that there are many exceptions to the rule. Some of the exceptions occur where there exist: (1) two or more clients employing the same attorney as in business transactions (drafting of deeds, execution of real estate agreements, etc.), (2) waiver, and/or (3) no public sense of impropriety involved in an attorney’s representing a client whose interests are hostile to those of his former client where the subject matter of the litigation is substantially the same. The attorney’s lips are not completely sealed in these exceptional situations, and the attorney may sue the former client concerning substantially the same subject matter. In In re Bauer’s Estate, 79 Cal. 304, 21 P. 759, 762 (1889), it was said:

When two persons address a lawyer as their common agent, their communications to the lawyer, as far as concerns strangers, will be privileged, but as to themselves they stand on the same footing as to the lawyer, and either can compel him to testify against the other as to their negotiations.

In 1 E. Thornton, A Treatise on Attorneys at Law, 183-84 (1914), it is said:

When two or more clients employ the same attorney in the same business, communications made by them in relation to such business is not privileged inter sese ; nor are such communications privileged as between any one of the parties and the attorney. It is the secrets of the client which affect his right that the law does not permit the attorney to divulge. By selecting the same attorney, in making their communications in the presence of each other, each party waives his right to place those communications under the shield of professional confidence. [Footnotes omitted.]

In Croce v. Superior Court, 21 Cal.App.2d 18, 68 P.2d 369 (1937), an attorney who had represented several clients associated in a business enterprise, in the defense of an action involving a common interest, was allowed to represent one of his former clients in a subsequent litigation instituted against his associates wherein substantially the same subject matter was being re-litigated. The Court ruled that this was an exception to the confidentiality rule because all of the clients were involved in a common business enterprise and had selected the same lawyer.

In the case at bar, there can be no question that the subject matter of this litigation is substantially related to the work done by Mr. Moore when he wrote two title opinions for Taylor Coal Company. We have already said that once an attorney-client relationship is established all information coming to the attorney from his client, whether it be from public records or not, is confidential. However, we find this case very close to the exception that allows a lawyer to sue a former client where both have employed him with reference to the same business transaction. Judge Junkin has already found that the only information which was given to Mr. Moore was an abstract of title prepared by Lucy Crutcher from public documents. Here, the confidential information is not only known to Taylor Coal Company, Mr. Sigler and the “Pearson Heirs,” but in a legal sense is known to the whole world. Indeed, Mr. Moore had represented Ensearch Exploration, Inc., since 1971 and prior to his rendering title opinions to Taylor Coal Company had rendered title opinions to Ensearch land agents on some of the mineral rights involved in this litigation. Was it, therefore, improper for Mr. Moore to render a title opinion on this same property to Taylor Coal Company? We think not.

The Court is not unaware that Fayette County is a small, principally rural county in western Alabama. There are probably about a dozen lawyers in the whole county. In weighing the important considerations of Canons 4 and 9, we must, of necessity, balance the weighty considerations of those Canons against the need of the public to obtain counsel of its choosing. In the realm of ethical consideration, there is no more apt a statement than Shakespeare’s observation that “there is nothing either good or bad, but thinking makes it so.” We cannot honestly conclude that the public, or the bar, particularly in Fayette County, would see an “impropriety” in Mr. Moore’s representing Mr. Sigler and the “Pearson Heirs” against his former client, Taylor Coal Company, when the only act which he performed for them which is substantially related is the rendering of two title opinions concerning rights involved in the present litigation. On the other hand, we can see a public outcry if we were to strip from the members of this community the opportunity to employ an attorney who apparently has developed some expertise in title work in the Fayette area.

Having concluded that there has been no violation of Canons 4 and 9 with reference to Mr. Moore, a fortiori, there can be no violation of these Canons with reference to Sam Phelps and his law firm and Mr. Sigler, because they are implicated only if Mr. Moore is.

Failure of Taylor Coal Company to Timely Assert Claim of Disqualification

In Judge Junkin’s detailed memorandum opinion, it is strongly suggested that the motion for disqualification in this case was filed for purposes of delay. After an exhaustive search of the records, we cannot conclude that this suggestion is not without merit. Some of the federal courts will not entertain an interlocutory appeal based on refusal to disqualify counsel. On the other hand, they will allow an interlocutory appeal where counsel has been disqualified. The reason given is that many motions to disqualify are made for purposes of delay. See Armstrong v. McAlpin, 625 F.2d 433 (2nd Cir. 1980); Allegaert v. Perot, 565 F.2d 246 (2d Cir. 1977); W. T. Grant Company v. Haines, 531 F.2d 671 (2d Cir. 1976); Lefrak v. Arabian American Oil Company, 527 F.2d 1136 (2d Cir. 1975); J. P. Foley & Co., Inc. v. Vanderbilt, 523 F.2d 1357 (2d Cir. 1975).

Taylor Coal Company first hired Mr. Moore to render a title opinion concerning the lands which are the subject of this litigation in September of 1975. The first action in this case was commenced on November 12, 1976, when Willis Crocker filed a bill to quiet title to certain mineral lands in Fayette County. Mr. Moore filed a motion to dismiss on behalf of all of the defendants in the case on December 17, 1976. Taylor Coal Company filed a complaint in intervention on January 14, 1977, and at this time knew that Mr. Moore was representing an interest inconsistent with the subject matter of his employment of September, 1975. They had to know this because a corporation can only act through its officers and agents. Their lawyers were their agents. Birmingham Boys’ Club, Inc. v. TransAmerica Insurance Company, 295 Ala. 177, 325 So.2d 167 (1976). Taylor Coal Company filed its motion to disqualify on May 29, 1980, over three years and three months from the time that it knew that Mr. Moore was representing an interest hostile to the subject matter of its employment of him in September, 1975. Furthermore, Taylor Coal Company knew on November 18, 1977, that Moore was representing an interest hostile to its interest when he filed a suit in trespass for Mr. Sigler and the “Pearson Heirs” in the United States District Court for the Northern District of Alabama. It again knew about Moore’s hostile representation when he re-filed the action making the same charges in the Circuit Court of Tuscaloosa County, Alabama. As early as October 15, 1976, Taylor Coal Company knew of Moore’s representation of conflicting interests when he notified Charles Tweedy, an attorney of record for Taylor Coal Company and Drummond Coal Company, and a director of Drummond Coal Company that he was representing the “Pearson Heirs” and Mr. Sigler in connection with their trespass claim.

Taylor Coal Company again knew of Mr. Moore’s alleged conflict of interest when in May of 1976, William B. Long, an officer of Drummond Coal Company, referred in a letter to the fact that a Fayette lawyer was representing Pearson Coal and Iron Company against Taylor Coal Company. Mr. Long was seeking indemnity for Drummond Coal Company from Taylor Coal Company against the claims of Mr. Sigler and the “Pearson Heirs.” This claim eventually resulted in litigation in federal court. It is simply not true that Taylor Coal Company only learned of Mr. Moore’s alleged conflict of interest when Tommy Wells of the firm of Cabaniss, Johnston, Gardner, Dumas and O’Neal discovered a title opinion written by Louis Moore, dated March 6, 1976, which had been misfiled.

To round out the entire picture, we do take note that after the Court below ordered the joinder of necessary parties requested by Mr. Moore, Taylor Coal Company refused to make the joinder after three extensions of time for the purpose of doing so. We also note that the Fayette case was dismissed on July 22, 1977, for want of prosecution and on August 15, 1979, Taylor Coal Company filed an amendment to its intervention in the Fayette action, despite the July 22, 1977, order of dismissal. The dismissal order was appealed by Taylor Coal Company, but we were compelled to dismiss the appeal on April 5, 1980, because Taylor Coal Company failed to file a brief! Although laches is not a defense unless prejudice has resulted to the other party, the trial court found that there was prejudice to the other party and we cannot say that its conclusion was palpably wrong. Smith v. McNaughton, 378 So.2d 703 (Ala.1979); Gertz v. Allen, 376 So.2d 695 (Ala.1979).

Having concluded that there was no violation of Canons 4 and 9, Code of Professional Responsibility of the Alabama State Bar, on the part of Mr. Moore, Mr. Sam Phelps, or their law firms, or any reason to preclude Mr. Sigler as a party in this case, and Judge Junkin having found that the parties represented by Mr. Moore and his co-counsel would be severely prejudiced by disqualification of counsel at this late hour, we must deny the petition for writ of mandamus.

WRIT DENIED.

FAULKNER and ALMON, JJ., concur.

TORBERT, C. J., and EMBRY, J., concur in result.

On Application for Rehearing

ADAMS, Justice.

Petitioner Taylor Coal Company calls to our attention that the opinion in this case recited that Taylor Coal Company failed to file a brief on appeal and its appeal was dismissed. This was not an accurate statement of the facts. That portion of the opinion is hereby corrected. This correction, however, does not undermine the fundamental facts and conclusions upon which the opinion was based.

We have carefully reviewed the able arguments for rehearing made by petitioners, but considering all of the facts and circumstances surrounding this case, we are of the opinion that mandamus does not lie.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

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


source: Caselaw Access Project

author: FAULKNER, Justice. TORBERT, Chief Justice

license: Public Domain

text:
    H. M. FREEMAN, d/b/a H. M. Freeman Motors et al. v. FIRST STATE BANK OF ALBERTVILLE.
    79-421.
    Supreme Court of Alabama.
    May 5, 1981.
    Rehearing Denied June 26, 1981.
    R. Kent Henslee of Henslee & Bradley, Gadsden, for appellants.
    Charles R. Hare, Jr. of Gullahorn & Hare, Albertville, for appellee.
   FAULKNER, Justice.

This is an appeal from a judgment in the Circuit Court of Marshall County for plaintiff First State Bank of Albertville. We affirm in part; reverse in part; and remand.

On November 30, 1977, Tim Williamson (not involved in this appeal) negotiated a purchase price on a 1976 Dodge van with the general manager of H. M. Freeman Motors in Gadsden. He received the lien-holder’s copy of the executed certificate of title application for the van and the following day he presented the copy to the First State Bank of Albertville in an effort to obtain financing. Based on the title application, the bank made the loan, took a security interest in the van, and issued a “loan disbursement check” made payable to Williamson and Freeman Motors. There was no indication on the face of the check that the loan was secured by any specific collateral.

On Saturday, December 3, Williamson returned to Freeman Motors and purchased a Subaru car. The manager asked Williamson whether he had obtained the check as financing on the van and Williamson responded that he had obtained a loan instead. After an unsuccessful attempt to contact the bank, the manager accepted the check and reimbursed Williamson the difference between the amount of the check and the purchase price of the car. In March or April, First State discovered that it had never received title for the van. Upon contacting Freeman Motors, the bank learned, for the first time, that Williamson had never purchased the van.

Williamson declared bankruptcy and First State filed suit against Williamson, Freeman Motors, and Auto Owners Insurance Company (due to its obligation under a bond) for breach of implied contract and for fraudulent representation. The action against Williamson was continued pending disposition of his bankruptcy proceeding. Thereafter, the case went to trial October 10, 1979. At the close of the evidence, defendants’ motion for a directed verdict, separately and severally, was denied and judgment was entered on a jury verdict of $14,662.63 for the plaintiff. Defendants then filed a motion for JNOV or, in the alternative, a new trial or, in the alternative, an amendment or vacation of the judgment. Motion was denied and Freeman Motors and Auto Owners appeal.

Appellants, Freeman Motors and Auto Owners, first contend that First State failed to meet the requisite burden of proof on the contract count. We disagree. While no express contract was alleged by First State, our cases hold that an implied contract may arise from custom and trade usage. In Broyles v. Brown Engineering Co., 275 Ala. 35, 151 So.2d 767 (1963), we stated:

An implied contract arises where there are circumstances which, according to the ordinary course of dealing and common understanding, show a mutual intent to contract. Such a contract must contain all the elements of an express contract, which rests on consent, and is to every intent and purpose an agreement between the parties, and it cannot be found to exist unless a contract status is shown.

Moreover, we have repeatedly recognized that the only difference between an implied contract and an express contract is the mode of proof. E. g., Gilbert v. Gwin-McCollum Funeral Home, 268 Ala. 372, 106 So.2d 646 (1958).

The record contains testimony, representative of both lender and seller, concerning the customary use and effect of the lienholder’s copy of the application for certificate of title in the ordinary course of dealing within the automobile financing business in the surrounding geographical area where the complained of transaction occurred. Pursuant to Code 1975, § 32-8-36, if the automobile is purchased from a dealer, the lienholder’s copy contains: (1) a description of the vehicle; (2) the name and signature of the dealer; (3) the name of the lienholder; and (4) the name and signature of the purchaser/owner. When the transaction has been completed, the application is then sent to the State revenue department.

In the instant case, the lienholder’s copy, which First State received from Tim Williamson, contained all of the above mentioned information. Furthermore, there was ample evidence from which the jury could infer that the preparation of the application by Freeman Motors and the presentation of the document to First State by Williamson was standard procedure for obtaining bank financing. Even the employee who signed the application on behalf of the dealership testified that he was aware that banks required the completed application prior to extending automobile loans.

As we stated earlier, an implied contract must contain all of the essential elements of an express contract. Contrary to Freeman Motors’ and Auto Owners’ contentions, we find sufficient evidence to support a finding of breach of implied contract. The elements of a contract are: (1) agreement; (2) consideration; (3) two or more contracting parties; (4) legal object; and (5) capacity.

Viewed in the context of the automobile financing business, the properly executed application prepared by Freeman Motors showing First State to be the first lienholder and Williamson to be the owner of the van was, in effect, an offer by the dealer to complete the delivery of the van and to process the application if the bank would approve a loan to Williamson. When the bank approved the loan by taking a security interest in the described van and issuing its loan disbursement check payable to Williamson and Freeman Motors, it accepted the offer and relied upon the dealer to complete delivery and process the application. The loan money which enabled the purchase constituted valuable consideration passing from First State to Freeman Motors. Finally, the evidence indicates that both the dealer and the bank were aware of the significance of the lienholder’s copy of the application for certificate of title in the ordinary course of the automobile financing business.

Next, Freeman Motors and Auto Owners contend that First State failed to prove fraudulent representation pursuant to Code 1975, §§ 6-5-101 and 6-5-103. Again, we disagree. While we fail to find any evidence to support a finding of willful or intentional misrepresentation, § 6-5 — 101 provides a cause of action for misrepresentations of material fact made “by mistake and innocently” where such representations are acted on by the opposite party. In the case of Cartwright v. Braly, 218 Ala. 49, 117 So. 477 (1928), this Court, in interpreting Code 1923, § 8049 (Code 1975, § 6-5-101), stated: “Under section 8049 the misrepresentation must be of material fact, made to be relied upon as an inducement, and must be relied upon to the injury of the other party. In such case an intent to deceive is not essential.”

The lienholder’s copy which was presented to First State represented that Williamson was the owner of the described van and that First State was the first lienholder. First State acted upon the information in the document in making the loan. Accordingly, the facts are sufficient to support the jury’s finding.

Finally, Freeman Motors and Auto Owners contend that the evidence does not support an award of punitive damages under the fraudulent representation count. We agree. In Winn-Dixie Montgomery, Inc. v. Henderson, 353 So.2d 1380 (Ala. 1977), we stated:

[A]n innocent misrepresentation will not support an award of punitive damages. An award of punitive damages in an action for fraud will be upheld only if there is evidence from which the jury can conclude that the fraud was malicious, oppressive, or gross, and the representations were made with knowledge of their falsity-

It is evident that the jury awarded punitive damages for the fraud count. There is, however, no evidence to support a finding of any intentional fraud, malicious or otherwise.

The award of $4,662.63 compensatory damages for breach of contract is due to be affirmed. The award of $10,000.00 punitive damages for fraudulent representation is due to be reversed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

ALMON, EMBRY and ADAMS, JJ., concur.

TORBERT, C. J., concurs specially.

TORBERT, Chief Justice

(concurring specially).

I concur to affirm the judgment awarding plaintiff compensatory damages on the theory of legal fraud. See, Code 1975, § 6-5 — 101. However, I disagree that there was an implied contract between plaintiff and defendant. The loan proceeds from plaintiff bank to Mr. Williamson, although also payable to defendant, do not constitute the consideration necessary for any alleged contract.


author: EMBRY, Justice. TORBERT, Chief Justice

text:
    CENTRAL BANK OF ALABAMA, N. A. v. PEOPLES NATIONAL BANK OF HUNTSVILLE.
    79-432.
    Supreme Court of Alabama.
    May 28, 1981.
    Rehearing Denied July 2, 1981.
    John M. Heacock, Jr. of Lanier, Shaver & Herring, Huntsville, for appellant.
    Paul L. Millirons of Stephens, Millirons, Harrison & Walker, Huntsville, for appel-lee.
   EMBRY, Justice.

This appeal is from a judgment in favor of plaintiff Peoples National Bank of Huntsville and against defendant Central Bank of Alabama, N. A. in an action asserting that Central was .liable to Peoples in the amount of $82,000 on account of the payment to Beth B. White of that amount when a worthless check drawn upon her account at Central was accepted by Peoples.

Peoples originally asserted two theories of recovery. By stipulation the parties agreed that the sole issue for determination by the trial court was the “midnight deadline” theory. Simply stated, that theory makes the depository or payor bank liable to pay the forwarding bank the amount of a check if, after presentment and receipt, the check is not returned by the midnight deadline. Midnight deadline is defined in Code 1975, § 7-4-104:

(h) ‘midnight deadline’ with respect to a bank is midnight on its next banking day following the banking day on which it receives the relevant item or notice or from which the time for taking action commences to run, whichever is later;

No contention is made by either of the parties that any of the transactions pertinent to this case took place on any day other than a “banking day.”

The parties in brief and in oral argument treat what they regard to be three issues. In fact, resolution of this case under the midnight deadline theory is determinative of this appeal and no other issue need be discussed or resolved.

Peoples contends that under the midnight deadline theory Central was correctly found liable because Central failed to comply with Code 1975, § 7-4-302:

[I]f an item is presented on and received by a payor bank the bank is accountable for the amount of:
(a) A demand item other than a documentary draft whether properly payable or not if the bank, in any case where it is not also the depositary bank, retains the item beyond midnight of the banking day of receipt without settling for it or, regardless of whether it is also the depositary, does not pay or return the item or send notice of dishonor until after its midnight deadline . . .. ”

On the other hand, Central says the trial court’s judgment is erroneous because, under the facts of this case, Central complied with the provisions of Code 1975, § 7-4-301:

(1) Where an authorized settlement for a demand item (other than a documentary draft) received by a payor bank otherwise than for immediate payment over the counter has been made before midnight of the banking day or receipt the payor bank may revoke the settlement and recover any payment if before it has made final payment (subsection (1) of § 7-4-213) and before its midnight deadline it:
(a) Returns the item; or
(b) Sends written notice of dishonor or nonpayment if the item is held for protest or is otherwise unavailable for return.
******
(4) An item is returned:
(a) As to an item received through a clearing house, when it is delivered to the presenting or last collecting bank or the clearing house or is sent or delivered in accordance with its rules; or
(b) In all other cases, when it is sent or delivered to the bank’s customer or trans-feror or pursuant to his instructions.

The following is a summary of the pertinent facts included in the trial court’s findings of fact made after a nonjury trial. They are amply supported by the evidence. On 18 September 1978, Mrs. Beth B. White presented the check, the subject of this litigation, to the Dunnavant’s Mall Branch of Peoples National Bank of Huntsville. She was the maker of the check which was drawn on her account at the Florence branch of Central Bank. Peoples paid her the proceeds of the check and then forwarded it with a cash letter to the Federal Reserve Bank in Birmingham, which is a clearing house for the litigant banks. According to standard procedure, the Federal Reserve Bank made a provisional credit to Peoples’ account and simultaneously debited the account of Central at Florence. Both actions occurred on 20 September 1978. The check arrived at Central Bank’s designated place of presentment at the Decatur Data Processing Center on 20 September 1978. This is also known as Central Computer Center, Inc. On that same date, when the check was received by that center it was stamped “processed” and debited against Mrs. White’s account. That center performed the basic bookkeeping and data processing functions for the various branches of Central, including that at Florence, as well as substantially all the accounting functions of the Florence branch. However, the Florence branch did check for forgeries and make the final decision whether an item should be returned or not. On 21 September 1978, the check was delivered to the Florence branch of Central where it was determined that the endorsement of the payee, her son, was a forgery and the credit balance in Mrs. White’s account was conditional and based upon “uncollected funds.”

Uncollected funds are funds posted in an account based upon checks payable by, but not collected from, various other banks upon which the deposited checks were drawn. On 22 September 1978, a courier of Central took the check in question to Peoples in Huntsville. The check was returned to Central at Florence by the same courier on that same day. On 23 September 1978, Central at Florence deposited the check with the courier service for the Birmingham Federal Reserve. It was received by the latter on 25 September 1978. To return the subject check through the Birmingham Federal Reserve, acting as a clearing house, all required is that the check with a cash letter be deposited in the Federal Reserve courier service depository. Such could have been accomplished on the 22nd of September after the return of the courier from Huntsville. The check was returned by the Federal Reserve directly to Peoples after debiting Peoples reserve account in the amount of $82,000. Regulation “J,” CFR 210.12, is controlling in cases where items are forwarded through the Federal Reserve System. Among other things, it provides that a paying bank shall have the right to recover payment or remittance if it “. . . takes such other action to recover such payment or remittance within such time and by such means as provided by applicable state law . . . . ” The applicable state law is Code 1975, § 7-^1-301.

As we can see from these facts, there was an attempt to make a direct return of the check and also an attempt to return it through a clearing house; each after midnight of 21 September 1978.

The pivotal determination to be made in this case is the time when the midnight deadline began to run on Central. The trial court did not reach the issue of when Central’s midnight deadline began to run. Central contends the deadline did not begin to run until the check arrived at its Florence branch on 21 September 1978. Central says that because the trial court failed to decide the issue of when Central’s midnight deadline began to run, whether upon arrival of the check at the computer center or at the Florence branch, that in the event of a reversal of the trial court upon the first two issues, as stated by it, this case should be remanded for an initial determination of the third issue by the trial court. The trial court stated those issues as follows:

1. Did the defendant abort its return of the subject item prior to effective delivery of the same on September 22,1978?
2. Is Code of Alabama 1975 § 7-A — 106 applicable to presenting banks as well as to payor bank? An answer to this question is determinative as to whether or not a delivery to The Madison Street Branch of the plaintiff was an effective return to the presenting bank.
3. Is a computer center, which is the designated place of presentment, and which performs all the basic bookkeeping functions for a bank or a branch thereof, a ‘separate bank’ under § 7-4 — 106, supra. An answer to this question is determinative as to whether the time for the midnight deadline began to run on September 20, 1978 or September 21, 1978.
It appears that a determination of any one of the stated issues favorable to the plaintiff would be determinative of this cause.

We cannot agree, because the trial court, though assigning erroneous reasons, arrived at the correct result in this case; therefore, its judgment is due to be affirmed. City of Montgomery v. Couturier, 373 So.2d 625 (Ala.1979); International Resorts, Inc. v. Lambert, 350 So.2d 391 (Ala. 1977); City of Birmingham, a Municipal Corp. v. Community Fire District, a Public Corp., 336 So.2d 502 (Ala.1976). We have no difficulty in making the determination about the beginning of the running of the midnight deadline. Peoples relies heavily, and rightfully so, on the case of Farmers and Merchants Bank of Long Beach v. Bank of America National Trust and Savings Association, 98 Cal.Rptr. 381, 20 Cal.App.3d 939 (1971). Appellant contends that its Florence branch was a separate bank as defined by Code 1975, § 7-4-106:

§ 7 — 1-106. Separate office of a bank.
A branch or separate office of a bank is a separate bank for the purpose of computing the time within which and determining the place at or to which action may be taken or notices or orders shall be given under this article and under article 3.

That being true, Central says, then of necessity, its midnight deadline did not begin to run until the check arrived at its Florence branch. We agree that the Florence branch is a separate bank for purposes of § 7 — 4—106. However, we cannot agree that the midnight deadline did not begin to run until the check arrived at the Florence branch. Farmers and Merchants Bank of Long Beach, supra, is strikingly similar to this ease. Because we deem it controlling as precedent, we burden this opinion with an extensive quote from that case:

“The Central issue before the court below was whether both the Bank of America and Farmers and Merchants were barred from returning their respective sets of checks to each other because each of them held the checks beyond the time limits prescribed by section 1013 of the Financial Code. In order to decide the correctness of the court’s holding it becomes necessary to determine whether the time set forth under section 1013 begins to run when the checks were delivered to Bank of America’s Montebello computer center (as held by the court below), or whether the statutory time begins to run after their arrival at the Harbor-Orangewood branch, as appellant, Bank of America, urges upon us. Assuming that receipt of the checks by the Montebello computer center was receipt by the drawee branch within the meaning of section 1013, then the trial court correctly found that Exhibits 1 — 4 and 8 and 9 were not dishonored in time, since these checks were returned after midnight of the next business day after receipt.
“Bank of America argues that the Harbor-Orangewood branch is a separate bank under section 1012 and section 1018 of the Financial Code, and that time should run from receipt at that office and not from receipt at the Montebello computer. Section 1012 of the Financial Code provides in part: ‘ * * * (c) each branch or office of a bank shall be deemed a separate bank.’
“Section 1018 of the Financial Code, as in effect at the time of the transaction involved, provides in part: ‘An item * * received for * * * collection * * * at any other office of the same bank, shall be deemed for all the purposes of this article as * * * payable at another bank.’
“The fact that the Harbor-Orangewood branch is a ‘branch or office’ and therefore a ‘separate bank’ within the meaning of the above code section, in no way negates the fact that the Montebello computer center is part of that branch for purposes of section 1013. The testimony set forth in the facts clearly shows that the Montebello computer center mainly performed the Harbor-Orangewood branch’s bookkeeping functions and those acts that were performed by the computer were not performed in the Harbor-Or-angewood office. Prior to the formation of the Montebello computer center, the acts being performed by the Montebello computer were performed manually by employees at the Harbor-Orangewood branch. All these facts tend to support the trial court’s finding that the Monte-bello computer was part of the Harbor-Orangewood branch within that meaning of former section 1013 of the Financial Code.
“Since the Bank of America failed to return checks 1-4, 8 and 9, and A through F before midnight of the next business day after receipt by the Montebello computer center, those checks were returned beyond the time limit of section 1013.”

We think this case clearly falls within the rationale of and is factually similar to Farmers and Merchants Bank exemplified by the quoted paragraph beginning with the words “[T]he fact that the Harbor-Or-angewood . . . . ”

Under the facts of this case, we think Central Computer Center, the designated place for presentment of items for payment by Central’s Florence branch, is part of that branch for purposes of Code 1975, §§ 7 — 4— 104, 7-4-301 and 7-4-302, supra. It follows that the midnight deadline began running when the check arrived at Central Computer Center on 20 September 1978 and expired at midnight 21 September 1978. Central would argue that the conclusion we have reached and our reliance on Farmers and Merchants Bank are unsound and unworkable. Central cites the “Alabama Comment” to § 7-4 — 106 which notes that in adopting this section defining a branch or separate office as a separate bank for the purposes stated in the section the optional language “maintaining its own deposit ledgers” following the words “separate office of a bank” near the beginning of the section was omitted and therefore the Florence branch is a separate bank even though it does not maintain its own deposit ledgers and the midnight deadline does not begin running until the check arrives at that branch. It makes no difference that it is a separate bank; the computer is still an integral part of it. Central contends that Idah-Best, Inc. v. First Security Bank of Idaho, N. A. Hailey Branch, 99 Idaho 517, 584 P.2d 1242 (1978), is controlling in this case and compels reversal. We do not agree that comparison of the facts in this case with the Supreme Court of Idaho’s analysis of the facts in that case would lead us to a different conclusion than that reached by the Idaho Court. A reading of Idah-Best fails to show that the data processing center in that case was the designated place of presentment of a collection item as was here the case. Further, it is important to note that Idaho, unlike Alabama and California, by statute, requires that on the face of the bank checks the designated place of presentment or acceptance must be identified.

Different factual conclusions were reached by the Idaho court than those reached by the trial court and by us in this case. The following quote from Idah-Best will illustrate this:

. . . An analysis of the operations of the Boise data processing center shows that its functions are limited to the sorting and indorsing process typical of a collecting bank and to the transmitting of information that allows the Salt Lake City computer to keep tentative customer accounts. It is the conclusion of this court that when considered in light of the entire collection and payments process, a check’s arrival at the data processing center cannot be characterized as ‘presentment upon’ and ‘receipt by’ the Hailey Branch.

Central expresses grave concern that a substantial and burdensome logistical problem will be created if local branches of Central are required to return the check on the day after its receipt at the computer center where Central has forty branches served by the computer center, some of which are located as much as 100 miles from that center. To allow this reasoning to permit the midnight deadline to begin running from time of receipt at the local branch would be to thwart the very purpose of the midnight deadline: to encourage prompt return of dishonored checks. Moreover, to permit delay of the beginning of the running of the midnight deadline would have the effect of allowing the payor bank to unilaterally decide when the deadline would begin to run by the simple device of choosing the time to forward the check to the branch. Taken to the extreme, the failure of the computer center to forward the check to the branch would never trigger the beginning of the running of the midnight deadline. This argument also ignores the fact of the present state of the art of computer capability, particularly with regard to visual communication between computer and terminals.

For the reasons assigned, the judgment entered below, following an ore tenus trial, is due to be and is hereby affirmed.

AFFIRMED.

FAULKNER, ALMON and ADAMS, JJ., concur.

TORBERT, C. J., concurs specially.

TORBERT, Chief Justice

(concurring specially):

I concur on the sole basis that the computer center of Central Bank was the designated place for the presentment of the items which otherwise would have required presentment to the Florence branch of Central under Code 1975, § 7 — 4-106.

      . Code 1975, § 7-4-301.

      “1 Section 1013 of the Financial Code readfs] in part:
      “ ‘In any case in which a bank receives, other than for immediate payment over the counter, a demand item payable by, at or through such bank and gives credit therefor before midnight of the day of receipt, the bank may have until midnight of its next business day after receipt within which to dishonor or refuse payment of such item. Any credit so given together with all related entries on the receiving bank’s books, may be revoked by returning the item, or if the item is held for protest or at the time is lost or is not in the possession of the bank, by giving written notice of dishonor, nonpayment, or revocation; provided, that such item or notice is dispatched in the mails or by other expeditious means not later than midnight of the bank’s next business day after the item was received. For the purpose of determining when notice of dishonor must be given or protest made under the law relative to negotiable instruments, an item duly presented, credit for which is revoked as authorized by this article, shall be deemed dishonored on the day the item or notice is dispatched. A bank, revoking credit pursuant to the authority of this article, is entitled to refund of, or credit for, .the amount of the item.’ ”

      “2 [Footnote two has been omitted.]”

      “3 For the purposes of this appeal, we accept the trial court’s theory that receipt by the ‘Erma’ computer, which merely sorted out checks, was not a receipt of checks by the Harbor-Orangewood branch.”
      “Statutes in other cases similar to Financial Code, section 1013 have been strictly construed as to the time limit.

      “4 See General Finance Corp. of Florida v. Central and Trust Company (C.A. 5th 1959) 264 F.2d 869; Wisner v. First National Bank of Gallitzin (1908) 220 Pa. 21, 68 A. 955, 17 L.R.A.,N.S. 1266.”


author: ALMON, Justice. JONES, Justice

text:
    Carolyn BOYD v. GREAT CENTRAL INSURANCE COMPANY.
    79-591.
    Supreme Court of Alabama.
    June 5, 1981.
    Rehearing Denied July 10, 1981.

      John H. Lavette, Birmingham, and Philip C. Henry, Atlanta, Ga., for appellant.
    W. Lee Pittman of London, Yancey, Clark & Allen, Birmingham, for appellee.
   ALMON, Justice.

This is an appeal from a declaratory judgment that Great Central Insurance Company has no obligation to either defend its insured or pay any judgment entered against its insured in an action brought for personal injuries allegedly caused by the insured. We affirm.

Carolyn Boyd accompanied Ocie Tannehill to a nearby grocery store to purchase some beer. As they drove to the store, they passed Tannehill’s girlfriend, Bertha Blocker, who had been driving around looking for Tannehill. When Tannehill failed to stop after she sounded her horn, Blocker became incensed and chased the Tannehill vehicle for several miles at speeds approaching 80 miles per hour. Throughout this chase, Blocker maintained a distance of approximately one-half car length between her vehicle and Tannehill’s vehicle. When her tailgating and other maneuvers failed to stop Tannehill, Blocker fired three pistol shots into the trunk of Tannehill’s car. After pursuing Tannehill for several more miles, she finally decided to discontinue the chase. Before he could slow down, however, Tannehill lost control of his vehicle and collided with an oncoming automobile, injuring himself and Boyd as well as killing two passengers in the other ear.

Boyd sued both Tannehill and Blocker for her injuries; Tannehill cross-claimed against Blocker for his injuries. Great Central, Blocker’s insurer, filed an action for declaratory judgment to determine its obligations under Blocker’s insurance policy. That policy obligated Great Central to defend Blocker and pay any judgment entered against her in an action for personal injury or property damage caused by an “occurrence.” Great Central contended that neither Boyd’s nor Tannehill’s injuries were covered under the policy — -and thus, it had no duty to either defend or pay — because they did not arise from an “occurrence,” defined in the policy as

An accident . . . which results in bodily injury or property damage neither expected or intended from the standpoint of the insured, [emphasis ours]

The trial judge heard the evidence ore tenus and determined that Great Central was under no duty to either defend or pay any judgment which might be entered against Blocker in the suit filed by Boyd. In his final judgment he stated in part:

Based upon the evidence presented, the Court concludes that Bertha Blocker’s acts during the events involved were voluntary and intentional and not an accident. The Court further concludes that the injuries that were sustained by Tannehill and Carolyn Boyd were the likely and natural result of those acts.
The Court is, therefore, of the opinion that the events made the basis of the tort actions against Bertha Blocker were not an occurrence [accident] within the provisions of the policy of insurance of Great Central and that its policy does not cover the tort claims of Tannehill and Carolyn Boyd. For such reasons, Bertha Blocker is not entitled to insurance coverage by Great Central, [brackets original]

On appeal, Boyd contends the trial judge misinterpreted the applicable law and misapplied that law to the facts and, in the alternative, that his findings of fact are plainly erroneous.

Policy coverage exclusion clauses such as the one in the present case have been construed by this Court to require that the bodily injury be intentionally caused before the provision can operate to exclude coverage. Hartford Fire Ins. Co. v. Blakeney, 340 So.2d 754 (Ala. 1976). Boyd argues that the judgment of the court did not expressly state that the injuries were either expected or intentionally inflicted. This is a rather technical construction of the judgment. Lawler Machine & Foundry Co., Inc. v. Pacific Indemnity Ins. Co., 383 So.2d 156 (Ala. 1980). But even conceding for the purposes of argument that the language of the judgment does not exactly track the language in Hartford Fire, supra, we nevertheless are of the opinion that the trial court reached the correct result. If a decision is correct, it is due to be affirmed regardless of the reasons the trial judge gave for reaching his conclusion. City of Montgomery v. Couturier, 373 So.2d 625 (Ala. 1979); Clanahan v. Morgan, 268 Ala. 71, 105 So.2d 429 (1958). Notwithstanding Blocker’s testimony that she only intended to stop Tannehill so that she could talk with him, it is more than reasonable to conclude from the facts in this case that Blocker intended to injure the occupants of the Tannehill vehicle in any way possible and to any extent possible. The judgment is affirmed.

AFFIRMED.

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

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

FAULKNER, J., dissents.

JONES, Justice

(concurring specially).

In concurring specially to affirm the trial court’s holding that the casualty insurance carrier has no obligation under its policy of insurance with Blocker, I am mindful that we are reviewing a factual finding made by the trial judge from evidence susceptible to conflicting inferences.

Blocker’s high speed chase of Tannehill would not support a finding of lack of accident or “occurrence.” Here, however, Blocker’s chase was coupled with her firing a pistol at Tannehill’s speeding car. This additional act on Blocker’s part tipped the scales in favor of an evidentiary basis for the trial judge’s inference that the intended acts are so naturally related to the results that the intentional conduct cannot be separated from its consequences.

In Hartford Fire Insurance Company v. Blakeney, 340 So.2d 754 (Ala. 1976), we affirmed the findings of the trial court whicji stated in part:

“. . . but a voluntary injury is intentionally doing some act which reasonable and ordinary prudence would pronounce dangerous ...”

Evidence to support the element of intent was absent in Hartford, but the trial, court here was presented sufficient evidence to find voluntariness in the acts of Blocker; therefore, pursuant to the presumption of correctness rule, I would affirm the judgment of the trial court.

MADDOX and BEATTY, JJ., concur.


author: EMBRY, Justice.

text:
    Rebecca B. WARD, as Administratrix of the Estate of Walton Lee Ward, deceased v. SOUTHERN PINE ELECTRIC COOPERATIVE, INC., a Corp.
    79-620.
    Supreme Court of Alabama.
    June 26, 1981.

      W. Sidney Fuller of Tipler, Fuller & Sikes, Andalusia, and William D. Melton, Evergreen, for appellant.
    Richard A. Ball, Jr., of Ball, Ball, Duke & Matthews, Montgomery, for appellee.
   EMBRY, Justice.

Plaintiff, Rebecca Ward, appeals from a final judgment entered on a jury verdict in favor of defendant, Southern Pine Electric Cooperative, Inc. Plaintiff alleged that her husband, Walton Lee Ward, was killed as a result of defendant’s negligence and wanton misconduct in conducting its business of distributing electric current and maintainig equipment for such distribution. Defendant denied negligence and raised the affirmative defenses of contributory negligence and assumption of risk. The trial court directed a verdict for defendant at the close of plaintiff’s evidence on the count for wanton misconduct. The negligence count was submitted to the jury; it returned a verdict for defendant.

Facts

On 28 June, 1978, while Walton Ward and an assistant were installing a citizens’ band (C.B.) base antenna at Ward’s mother’s home on U.S. Highway 84 in Conecuh County, Alabama, the antenna came in contact with defendant’s uninsulated, high voltage transmission line and, as a result, Ward was electrocuted. Just prior to this, as they were moving the antenna it contacted a telephone line. Ward’s assistant told him to “Watch that line there.” Ward responded that “The telephone line wouldn’t do nothing.”

The power line carried 24,900 volts phase to phase, or 14,400 volts phase to ground, from a takeoff pole at Highway 84 to a transformer on the deadhead pole some 387 feet away in Ward’s mother’s backyard. The line exceeded the minimum distances, from the house and from the ground, required by the National Electrical Safety Code.

Numerous photographs of the area of the accident are in evidence. They show the location of both the power and telephone lines relative to the corner of the house where Walton Ward was attempting to relocate the C.B. antenna; a single deadhead pole behind the house; two transformers mounted on that deadhead pole; the takeoff pole on Highway 84 and the line running between the takeoff pole and the deadhead pole. It is apparent from these photographs that the power lines are suspended just above the telephone line in the area where Ward’s antenna made contact with the power line. All of the lines are in an open area and clearly visible in the photographs.

Discussion

Plaintiff argues that the trial court erred in giving one of the defendant’s requested jury instructions concerning contributory negligence and in failing to give one of the plaintiff’s requested jury instructions regarding contributory negligence. An examination of the record shows that plaintiff made no objection to the trial court’s action with regard to defendant’s requested instruction. No party may assign as error the giving or failing to give a written instruction,- or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge, unless he objects thereto before the jury retires to consider its verdict. Rule 51, ARCP; Gavin v. Hinrichs, 375 So.2d 1063 (Ala.1979).

With regard to the trial court’s refusal to give the plaintiff’s requested instruction, the trial court noted plaintiff’s exception to its action although no objections or grounds therefor were stated by the plaintiff. As we have stated, grounds must be assigned in support of an objection to the refusal of an instruction. City of Birmingham v. Wright, 379 So.2d 1264 (Ala.1980). Plaintiff’s failure to preserve error in connection, with the jury instructions by timely objecting to them, assigning grounds, precludes an assignment of error regarding those instructions.

Plaintiff further contends that the trial court erred in admitting a portion of the answer to an interrogatory directed to plaintiff while sustaining an objection to the admission of the complete answer. The interrogatory and plaintiff’s reply are:

Do you contend that, prior to the accident, Southern Pine had any notice of Ward’s plan to move the antenna?
No, but Southern Pine was certainly aware of the potential hazard created by them and should have warned Ward and others in potential danger.

Although the “no” portion of the answer was admitted, the trial court sustained defendant’s objection to the remainder of the answer. Clearly, the portion of the answer which was excluded was not responsive to the question and was an impermissible conclusion as well. Rule 33(b), ARCP, provides for the use of answers to interrogatories at trial to the extent they are allowable by the rules of evidence. An unresponsive answer may properly be excluded from evidence, Penney v. Warren, 217 Ala. 120, 115 So. 16 (1927), and this court has upheld the exclusion of the unresponsive answer to an interrogatory. Leath v. Smith, 240 Ala. 639, 200 So. 623 (1941); Illinois Central R. Co. v. Nance, 16 Ala.App. 569, 80 So. 143 (1918). We find no error in this regard.

Plaintiff contends the trial court erred in admitting into evidence without authentication, and over plaintiff’s objection, a copy of a notice entitled “TV Antenna Safety Hints” which warned of the dangers of erecting an antenna near electric power lines. Defendant’s operating superintendent testified that defendant published such warnings from time to time in a publication which was mailed to members of the cooperative; decedent and his mother were members. Admitting this evidence did not violate the best evidence rule. It was not introduced to prove the terms or content of the writing. It properly related to the collateral matter of whether defendant had made an attempt to warn cooperative members of the dangers of erecting an antenna near electric power lines. The notice was merely an example of those published from time to time in order to warn cooperative members of dangers associated with erecting antennas near power lines. The trial court did not abuse its discretion nor commit prejudicial error by admitting this evidence.

Lastly, plaintiff contends the trial court erred by directing a verdict for the defendant on the count for wanton misconduct and by refusing to charge the jury that contributory negligence is not a defense to wanton misconduct. We find no error in this regard.

We have defined wanton misconduct as “the conscious doing of some act or the omission of some duty [while] under knowledge of existing conditions and while conscious that, from the doing of such act or the omission of such duty, injury will likely or probably result.” Whaley v. Lawing, 352 So.2d 1090 (Ala.1977).

There is no evidence in this case which would warrant submission of the issue of wantonness of defendant to the jury.

We have stated, regarding the duty of an electric company, that “in the absence of statute or municipal ordinance, it is not necessary to insulate wires which are so placed that no one could reasonably be expected to come in close proximity to them.” Alabama Power Co v. Alexander, 370 So.2d 252 (Ala.1979). There is no evidence these power lines were installed in violation of any statute, ordinance, or safety regulations, or that they were installed where one could reasonably be expected to come in contact with them.

In the absence of any evidence of actual or constructive notice that Walton Ward was installing an antenna in close proximity to the power line, Campbell v. Alabama Power Co., 378 So.2d 718 (Ala.1979), we cannot conclude the trial court erred in directing a verdict for the defendant on the count charging wanton misconduct and refusing jury charges relating to wantonness.

Because no error appears in the record of the trial of this case, the judgment below is affirmed.

AFFIRMED.

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


author: ALMON, Justice.

text:
    TERRY PROPERTIES, INC., et al. v. The CITY OF ROANOKE and Tommy Hill.
    79-719.
    Supreme Court of Alabama.
    June 26, 1981.
    William J. Baxley of Baxley, Stuart, Ward & Dillard, Birmingham, for appellants.
    Lewis H. Hamner, Jr., Roanoke, for ap-pellees.
   ALMON, Justice.

Roy Terry, Rudolph Terry and Terry Properties, Inc., appeal from a decree upholding the partial vacation of a public street in Roanoke, Alabama.

The street vacated, Industrial Boulevard, runs from Chestnut Street on the west to Highway 431 on the east; the eastern half of the boulevard bisects the Roanoke Industrial Park. By resolution, the Roanoke City Council vacated that portion of Industrial Boulevard which runs through the industrial park. Appellants, owners of property bounded on the south by Industrial Boulevard and on the east by the industrial park, filed suit in circuit court to temporarily restrain and enjoin the vacation of the street “until such time as [the City and its mayor, Tommy Hill,] comply with [Section] 23 — 4-1, et seq.” This requested relief was denied after the trial judge determined that the street had been “properly vacated in accordance with Section 23 — 4—20, Code of Alabama 1975.”

Notice of appeal to this Court was filed by appellants on April 1, 1980. That same day the City instituted in the probate court proceedings in accordance with Code 1975, § 23-4-1, et seq. After conducting a hearing and concluding that the petition to vacate was due to be granted, the Judge of Probate ordered the road closed. A panel of court appointed commissioners assessed at zero the damages occasioned by the street vacation. Appellants then appealed to the circuit court. Upon the completion of the de novo hearing in that court, the trial judge concluded that all of the requirements of Code 1975, § 23-4-T, et seq., had been met and that the City’s petition to vacate was due to be granted; the jury assessed damages at zero. No appeal has been taken from the decree rendered in the second circuit court proceeding.

Appellees have moved to dismiss the appeal to this Court as moot. The gist of this motion is that by virtue of those proceedings instituted and conducted in the probate and circuit courts, appellants have been given the relief they sought, i. e., compliance with Code 1975, § 23 — 4—1, et seq.

Appellees’ motion is due to be granted. Appellants have been given an opportunity to voice their objections to the partial vacation of Industrial Boulevard. Both a panel of commissioners and a jury have passed upon the issue of damages which may have been suffered by appellants and others as a consequence of the vacation of the street. The City has complied with the provisions of Code 1975, § 23 — 4-1, et seq. Any relief this Court might grant appellants has already been afforded in the probate and circuit courts. Under such circumstances the issues before this Court are in fact moot and the appeal is therefore due to be dismissed.

MOTION GRANTED; APPEAL DISMISSED.

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


text:
    Billie Wayne WEEKS, et al. v. EAST ALABAMA WATER, SEWER AND FIRE PROTECTION DISTRICT, et al.
    79-814.
    Supreme Court of Alabama.
    July 2, 1981.

      Henry C. Chappell, Jr., of Rushton, Stakely, Johnston, & Garrett, Montgomery, for appellants.
    John W. Johnson, Jr., Lanett, for appel-lee.
   EMBRY, Justice.

This appeal arises out of an action' for damages on account of a fire loss allegedly caused by the negligence of defendants, East Alabama Water, Sewer, and Fire Protection District; Jim Slovensky, individually and as agent, servant, or employee of East Alabama Water, Sewer, and Fire Protection District; and others. East Alabama Water, Sewer, and Fire Protection District and Jim Slovensky were alleged to have been negligent in their undertaking to provide fire protection services regarding a fire which occurred on the business premises of Billie Wayne Weeks. East Alabama and Slovensky moved to dismiss the claims against them based upon negligence because both East Alabama, a public corporation, organized and existing by virtue of the laws of the State of Alabama, Code 1975, § 11-89-1 et seq., and Slovensky were immune from liability for any tort, whether negligent or willful, committed by a director, agent, servant or employee of the district in and about the furnishing of fire protection service, by virtue of the provisions of Code 1975, § 11-89-15. The plaintiffs, Billie Wayne Weeks and others, appeal from the judgment, made final by a Rule 54(b), ARCP, order, dismissing the claims against East Alabama and Jim Slo-vensky, individually and as an agent, servant or employee of East Alabama, based upon negligence.

The issues to be resolved are: (1) whether the trial court erred in dismissing the claims for negligence against East Alabama and Jim Slovensky, as an agent of East Alabama on the basis of statutory immunity; and (2) whether the trial court erred in dismissing the claims for negligence against Jim Slovensky, individually, because the immunity, if any, afforded by Code 1975, § 11^89-15, applies only to the corporate entity.

Regarding whether the trial court erred in dismissing the claims based upon negligence against East Alabama and Slovensky, as its agent, appellants argue that recent decisions of this court have abolished the defense of governmental immunity and Code 1975, § 11-89-15, unconstitutionally denies plaintiffs due process and equal protection of the laws under the Fourteenth Amendment to the United States Constitution and Article I, §§ 6 and 13 of the Alabama Constitution. Appellants rely on Cook v. St. Clair County, 384 So.2d 1 (Ala. 1980); Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So.2d 631 (1975); and Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975), for the proposition that this court has abolished governmental immunity from tort liability without exception.

These authorities do not support appellant’s conclusion. It is the prerogative of the legislature, within constitutional limits, to authorize a public corporation to sue or be sued. Scotti v. City of Birmingham, 337 So.2d 350 (Ala.1976). This court recognized that fact with respect to both the city, in Jackson, and the county, in Lorence, wherein it declared that:

Neither is the creation of the Constitution, both are creatures of statute. The fact and nature of their respective existence, as well as the duties, powers, and limitations, are governed solely by legislative mandate....

Proceeding on this premise, this court, in both opinions, held the entities in question subject to suit only after identifying the existence of express statutory authorization for those entities to be sued. Thus, in Lo-rence, it is stated:

. . . What is before us is the immunity question with respect to county hospital boards; and because the statute authorizing such corporate entity expressly provides for suits against them, Jackson, in its holding and rationale, compels a like conclusion. [Emphasis added.]

The point was similarly emphasized in Jackson:

In deciding, as we do, that municipal immunity for tort is abolished in this state after the date of this opinion, we recognize the authority of the legislature to enter the entire field, and further recognize its superior position to provide with proper legislation any limitations or protections it deems necessary . . . Finally, in Cook, it was said:
Section 11-1-2, Code 1975, provides, “Every county is a body corporate, with power to sue or be sued in any court of record.” This provision contains the words “be sued” which this Court has stated in Lorence, Sims, and Caver to be essential to a determination of statutory authorization of suits against a governmental entity. . . .

These statements demonstrate with clarity and certainty that the three cases upon which appellant relies for his assertion that governmental immunity for torts has been abolished have no application where the legislature has specifically exercised its preemptive right to declare that a public corporation which it has created cannot be sued. Furthermore, these decisions do not address the constitutional issues raised by appellant. Because appellant’s brief cites no other authorities to support his contention that Code 1975, § 11-89-15, is unconstitutional as violative of equal protection and due process, it is not necessary to treat these issues. We conclude that East Alabama is afforded immunity from tort liability by § 11-89-15 and affirm the dismissal of tort claims against it.

Slovensky also contends that the action against him, individually, should have been dismissed on the basis of Code 1975, § 6-5-335, which provides:

When any member of any organized rescue squad or volunteer nonprofit fire department, gratuitously and in good faith, enters any building, house or structure which is burning or endangered by fire and makes efforts to preserve and protect said property and any other property contained therein or located on the premises thereof, such members shall not be liable for any civil. damages for such entering or as result of any acts or omissions in rendering such efforts; nor shall such members be liable for any civil damages in rendering such efforts for their acts or omissions causing injuries to fellow volunteers or to owners of said property; provided, however, that this section shall not apply to civil damages for wanton misconduct.

Dismissal is proper under Rule 12(b)(6), only when it is clearly demonstrated that plaintiff has no claim upon which relief can be granted under any set of provable facts according to a cognizable theory of law. See Lavoie v. Aetna Life and Casualty Co., Inc., 374 So.2d 310 (Ala.1979). Whether Slovensky is immune from liability because of § 11-89-15 and § 6-5 — 335, or either one of those code sections, depends upon factual determinations that we cannot make from the record before us.

As to Slovensky, the judgment below dismissing all claims against him is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

As to East Alabama, the judgment below is hereby affirmed.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

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

      . § 11-89-15. Furnishing of fire protection service by district declared governmental function; immunity from tort liability of district.
      The furnishing of fire protection service by a district is hereby declared to be a governmental function.
      The district shall not be liable for any tort, whether negligent or willful, committed by any director, agent, servant or employee of the district in the furnishing of fire protection service or in the construction, maintenance or operation of any fire protection facility.


author: ADAMS, Justice.

text:
    Charles L. HANKS v. Merle Hanks JEWELL, et al.
    80-4.
    Supreme Court of Alabama.
    July 2, 1981.
    Nicholas S. Hare and Nicholas S. Hare, Jr., Monroeville, for appellant.
    Windell C. Owens, Monroeville, for appel-lees.
   ADAMS, Justice.

This is an appeal by the plaintiff from the judgment of the Circuit Court of Monroe County, confirming the sale of lands to the defendant, Merle Hanks Jewell, for the sum of $40,000.00.

Plaintiff filed a sale for division suit, seeking the partition or division of approximately 120 acres of farm land property in Monroe County. This land was originally owned by J. B. Hanks and his wife, Merle J. Hanks. J. B. Hanks died in 1965, without children or a will and was survived by his wife Merle J. Hanks (now Merle Hanks Jewell) and four brothers, one of whom is the plaintiff.

At the time of her husband’s death, Merle Hanks Jewell continued to own a one-half interest in the 120 acres of farm land. During this litigation, and after, she was living on the property used by her former husband and her as a homestead. Pursuant to Code 1975, § 35-6-100 et seq., she sought to purchase the interest of the plaintiff without the necessity of a public auction. The court appointed three commissioners to appraise the property. Mr. Earl Silcox submitted an appraisal of $100,000.00; Mr. Ralph Dawson, an appraisal of $45,000.00; and, Mr. Lee Duval, an appraisal of $72,-000.00. The average of these appraisals is $72,333.00. However, after receiving these three appraisals, and in response to a motion filed by plaintiff, claiming Code 1975, § 35-6-100, to be unconstitutional the Circuit Court declared the sections unworkable and, therefore, unconstitutional and ordered that the land be sold at public outcry.

At the public sale on September 23, 1980, Merle Hanks Jewell submitted the only bid and purchased the property at public outcry for $40,000.00. Plaintiff says that Merle Hanks Jewell was the only bidder because, “it was just circulated around there was nobody supposed to bid against Merle Jewell.” Plaintiff cites as evidence of this the fact that when Mrs. Jewell was awarded the property at public auction, “they clapped their hands and everybody seemed to be pleased that there was only one bid.” Plaintiff filed an objection to the sale and a motion to set it aside on the grounds that there was a tacit understanding that no one was to bid against Merle Hanks Jewell.

At the confirmation hearing, Mrs. Jewell introduced several witnesses as to the value of the property. Radford Ward testified that the property was worth $40,000.00 on the market. Ralph Manning testified that he valued the land at $46,000.00. Ralph Dawson valued the land at $45,000.00. Benny Shumate was of the opinion that $40,000.00 bid by Mrs. Jewell was a fair price. At the close of the hearing, the trial court suggested that it thought the fact that Mrs. Jewell had an undivided one-half interest in the property had a bearing on the amount of the bid.

The sole issue in this case is whether, considering all of the facts and circumstances presented at the confirmation hearing, including the testimony of the commissioners, the witnesses for the defendant Mrs. Jewell, and the statement made by the court, did the trier of fact err in confirming the sale of the property to Mrs. Jewell for $40,000.00? He did not. We, therefore, must affirm his judgment.

Plaintiff’s first argument that we should reverse the Court’s confirmation of the bid of Merle Hanks Jewell posits that there was a tacit understanding that no one was to bid against Merle Hanks Jewell. This argument is buttressed by the fact that people at the public auction applauded when the property was “knocked down” to Mrs. Jewell and seemed happy that she had gotten it. Additionally, the judge seemed to say that the facts of life indicate that nobody in this case would bid against Mrs. Jewell, a widow with an undivided one-half interest in the property. But, can we set aside an otherwise legally conducted sale because there are persons in the community reticent to bid in what has been described as a family situation? We think not. The court judicially knows that there are many persons who may be familiar with property that ordinarily would bid on it, but for the natural reluctance to become involved in family disputes. We simply cannot set aside such sales unless the bid offered was measurably inadequate.

In 7 Am.Jur.2d Auctions and Auctioneers § 24, p. 383 (1980) the following was said:

Competitive bidding is an essential element of an auction sale and such a sale should be conducted fairly and openly with full and free opportunity for competition from bidders. It is a policy of law that a fair price be received by the parties interested in the property sold and that this be not prevented by the stifling of competition among bidders.
Generally speaking, any conduct, artifice, agreement, or combination, the purpose and effect of which is to stifle fair competition and chill the bidding, is against public policy and will cause sale to be set aside.

Furthermore, in Nash v. Elizabeth City Hospital Co., 180 N.C. 59,104 S.E. 33 (1920), the North Carolina Supreme Court recognized that a public sale could be set aside where the purchaser bought the land for less than the value by bidding through another individual who those present and bidding understood was representing a charitable organization. They were deterred from offering what they thought was a true value because of their desire not to interfere with property sought to be purchased for the public benefit. In the instant case, there is not a single piece of evidence of subterfuge on the part of the defendant. She presented herself at the auction as herself and made her bid and the persons present were apparently happy that she had received the property. This obviously falls short of the kind of active involvement in discouraging bids contemplated by the law stated in 7 Am.Jur.2d Auctions and Auctioneers § 24.

Plaintiff charged a “tacit conspiracy.” Webster’s New International Dictionary (unabridged) (2d ed. 1946), defines tacit as “unspoken; silent; wordless; noiseless; also, not speaking.” A conspiracy at law under the best of circumstances is difficult to prove. A tacit conspiracy would obviously be even more difficult to prove, although we are not saying that under no circumstances could a tacit conspiracy be proven. Nevertheless, under the facts of this case, we are constrained to hold that the plaintiff had the burden of proving such a conspiracy and he has not met his burden.

One common thread of law runs through this court’s decisions concerning the propriety of setting aside or reversing the trial court’s judgment in confirming a bid approved at a public auction. Mr. Justice Simpson spoke of it in Sieben v. Torrey, 252 Ala. 675, 676, 42 So.2d 621, 622 (1949), when he said:

On review here it is to be remembered that we do not weigh the evidence as regards its reasonably satisfying effect on- the issue tendered, but in considering it we indulge all favorable presumptions to sustain the trial court’s conclusion and will not disturb it unless palpably erroneous or manifestly unjust. Jennings v. Jennings, 250 Ala. 130(10), 33 So.2d 251; Cook v. Benton, 250 Ala. 259(3), 33 So.2d 877; Forest Hill Corp. v. Latter & Blum, 249 Ala. 23(6, 7), 29 So.2d 298.

In the case at bar, plaintiff offered three witnesses who were the commissioners appointed by the court to appraise the property. They brought three different figures to court, which averaged $72,333.00. However, one of the appraisers offered a figure of $45,000.00, not much different from the price of $40,000.00 offered by the defendant and approved by the court. On the other hand, the defendant offered appraisals of $40,000.00 to $45,000.00, $40,-000.00, $46,000.00, $45,000.00 and $40,000.00. Plaintiff argues that defendant’s witnesses were not experts. the

However, in Alabama, it is not necessary to be an expert to testify as to the adequacy of a real estate price. Sanford v. Sanford, 355 So.2d 365 (Ala.1978); Adler & Co. v. Pruitt, 169 Ala. 213, 53 So. 315 (1910). On the other hand, defendant questions seriously the reliability of plaintiff’s so-called experts. Defendant urges that plaintiff’s experts did not take into proper consideration the increase in interest rates from time of appraisal to time of sale. Nor did they take in consideration the value of some parts of the 120 acres against the value of other parts. Once again, we get back into the thicket of what the trial court is uniquely able to perform, namely, to judge the reliability and credibility of witnesses. There was abundant evidence upon which he could find that the bid of $40,-000.00 was measurably adequate. We are clear to the conclusion that he certainly acted within the bounds of his discretion and in so doing, his judgment is due to be affirmed.

AFFIRMED.

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

      . Plaintiff did not and could not appeal the trial court’s ruling as to the unconstitutionality of § 35-6-100 because the ruling was made at his request. This court, on June 5, 1981, ruled the section to be constitutional. Madison v. Lambert, 399 So.2d 840 (Ala.1981).