author: SHORES, Justice.

text:
    COOPER & COMPANY, INC. v. Johnnie M. BRYANT and Darla J. Frey Bryant. COTTAGE HILL REALTY v. Johnnie M. BRYANT and Darla J. Frey Bryant.
    81-835, 81-836.
    Supreme Court of Alabama.
    Sept. 23, 1983.
    Rehearing Denied Nov. 4, 1983.

      B.F. Stokes, III of Stokes & McAtee, Mobile, for appellant Cooper & Co. Real Estate, Inc.
    A. Neil Hudgens and J. George Whitfield, Jr. of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellant Cottage Hill Realty.
    Carl Robert Gottlieb, Jr., Mobile, for ap-pellees.
   SHORES, Justice.

The defendants, Cooper & Company Real Estate, Inc. (Cooper) and Cottage Hill Realty (Cottage Hill), appeal from a judgment entered against both defendants on a verdict for plaintiffs, Mr. and Mrs. Bryant, in an action to recover damages for concealment, deceit, misrepresentation, negligence, and breach of implied warranty in the sale of a used house.

In June of 1976, the Bryants, with the assistance of Cottage Hill and its salesman, Ed Welch, purchased a house, owned by Mr. and Mrs. Mixon and listed by Cooper, for a contract sales price of $23,200.00. Both Cooper and Cottage Hill received a commission on the sale of the house.

In October of 1976, the Bryants discovered a crack in the bathroom floor when they removed the carpeting left by the Mixons. The crack ran the entire length of the room. James E. Laier, a civil engineer engaged in soil mechanics and foundation engineering, inspected the house in July of 1977, and formed an opinion that the underlying slab had several cracks in it, one of which extended to the bathroom floor. It was his opinion that the house was settling differentially due to soft soil conditions and the cracked slab, and that the condition of the house would continue to deteriorate over time. It was his opinion that this condition had existed at the time the house was sold to the Bryants.

When the Bryants initially discovered the crack in the floor, Mr. Bryant telephoned Mr. Mixon, the former owner. The Mixons were aware of the crack in the bathroom floor and of a rear bedroom window that was out of alignment, but were unaware of the crack in the slab. Jim Waltman, agent of Cooper, the listing realtor, denied knowledge of the crack in the floor and, although he noticed that the window might be out of plumb, he could find nothing wrong with it. Waltman indicated on the multiple listing that the house was in excellent condition.

As a condition precedent to receipt by the Bryants of an FHA mortgage, an inspection of the house had been performed in June of 1976. The inspection report did not indicate that there were any serious problems with the foundation of the house at that time. The thoroughness of the inspection was subject to question at trial.

The Bryants filed suit against the Mix-ons; Cooper, the listing realtor; and Cottage Hill, the selling realty company. The complaint alleged willful concealment, misrepresentation, deceit, negligent and wanton conduct, and breach of implied warranty in the sale of the house. All three defendants moved for summary judgment. Only the motion filed by the Mixons vas granted, and the case went to trial as to the remaining two defendants on all five counts of the complaint. Motions for directed verdict on all five counts filed by Cottage Hill and Cooper at the close of plaintiffs’ case and at the close of all of the evidence were denied. The trial court submitted the case to the jury on all five counts. The jury returned a general verdict in favor of the Bryants and against Cottage Hill and Cooper. Motions by Cooper and Cottage Hill for judgment notwithstanding the verdict, new trial, and remittitur were denied. Both appeal and argue that the trial court erred in denying their motions for directed verdict and judgment notwithstanding the verdict. We reverse.

First, to recover for misrepresentation, the Bryants must prove that the realtors made a false statement of material fact upon which they justifiably relied. International Resorts, Inc. v. Lambert, 350 So.2d 391 (Ala.1977). Both appellants argue that the Bryants have failed to prove the prima facie case.

The Bryants contend that the description of the house’s condition as “excellent” that appeared in the multiple listing prepared by Cooper is an actionable misrepresentation. We do not agree. This case is indistinguishable from Harrell v. Dodson, 398 So.2d 272 (Ala.1981), in which we held that such a notation in the listing is not actionable misrepresentation.

In Harrell, the purchaser of a used house discovered numerous structural defects in it after the real estate closing. The listing prepared by the realtor had described the condition of the house as “excellent.” In upholding the directed verdict in favor of the realtors and seller, we said:

“There is no evidence the notation was pointed out to the Harrells in answer to some specific question. In fact, there is no evidence to provide a basis for attaching to that representation an implied underlying representation of material fact that the house was in excellent condition justifying reliance upon it as such rather • than merely an opinion to the same effect. We therefore conclude the Harrells failed to adduce sufficient evidence to support a cause of action for misrepresentation or fraud based upon the notation in the multiple listing book.”

398 So.2d at 276.

Harrell is dispositive of this case and, in light of the fact that no other representations were made, we hold that Cooper and Cottage Hill are not liable on the claim of misrepresentation.

Second, regarding the issues of deceit and concealment, the Bryants allege that the realtors knowingly concealed the defective condition of the house from them. We have repeatedly held that silence is not actionable fraud absent a confidential relationship or some other special circumstances imposing a duty to disclose. Harrell, 398 So.2d 276; Marshall v. Crocker, 387 So.2d 176 (Ala.1980). See, also, Ala.Code 1975, §§ 6-5-102, et seq.

The Bryants argue that a real estate broker who is negotiating the sale of a house is under a legal duty to disclose to a buyer defects which affect the health and safety of the buyer. They rely on Cashion v. Ahmadi, 345 So.2d 268, 269 (Ala.1977), in which we stated:

“A real estate broker may be hired to find a buyer or to find a seller. In either case the broker owes a duty of faithfulness to his principal.
“ ‘A broker is a fiduciary and holds a position of trust and confidence... . He cannot put himself in a position antagonistic to his principal’s interest, by fraudulent conduct, acting adversely to his client’s interests, or by failing to communicate information he may possess or acquire which is or may be material to his employer’s advantage, or otherwise.’ 12 Am.Jur.2d, Brokers, § 84.”

We remanded the cause in Cashion to determine whether a realtor, who obtained the buyers and received one-half of the commission, where the house was sold on a multiple listing, was an agent of the buyer or of the seller.

Agency is normally a question of fact to be determined by the jury. Cashion, 345 So.2d 271. In the case at bar, however, there is not even a scintilla of evidence that Cooper, the listing realtor (and the only one who knew or might have known about the crack in the bathroom floor), was the agent of the Bryants. Cooper had been retained by the sellers and played no part in bringing the Bryants to the house. There were no direct dealings between the Bryants and Cooper.

Additionally, there was no “inequality of condition and knowledge, or other attendant circumstances” which would have obligated Cooper to speak. Marshall, 387 So.2d 179. The record clearly shows that the Bryants had several opportunities to inspect the premises and inquire about its condition. At the time, Mr. Bryant was employed by a company that tested ground conditions and structural qualities, and he knew of the importance of a good building foundation. We cannot hold, under these facts, that Cooper had a legal duty to communicate with the Bryants about the house.

Cottage Hill, being the realtor that did bring the Bryants to the house, may have been obligated to disclose defects in the house, but there was no evidence that it had any knowledge of any problems. “As a matter of law, one can only be liable for concealing facts of which one has knowledge.” Harrell, 398 So.2d 276.

Thirdly, the trial court denied appellants’ motions for directed verdict on the count of breach of implied warranty. This was reversible error. In the resale of used residential real estate, there is no implied warranty of habitability. The doctrine of caveat emptor still applies in this state in the sale of used residences. Ray v. Montgomery, 399 So.2d 230 (Ala.1980). Here, the Bryants had ample opportunity to inspect, and, as mentioned, Mr. Bryant knew about the need to inspect. The facts show that the transaction was free of fraud and any unfair advantage. The authorities cited above compel a reversal as to both appellants on this count.

Finally, after a careful examination of the record, we find no evidence of any misconduct or negligence on the part of either appellant. The plaintiffs’ evidence falls short of proof of a prima facie case under each cause of action. It was, therefore, error to deny the realtors’ motions for directed verdict and judgment notwithstanding the verdict.

Accordingly, the judgment of the trial court is reversed.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    Elzirah P. FINLEY, et al. v. James W. BAILEY, et al.
    81-812.
    Supreme Court of Alabama.
    Oct. 28, 1983.

      Don B. Long, Jr. of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for appellants.
    John L. Cole, Birmingham, for appellees.
   ALMON, Justice.

This appeal concerns title to property among the descendants of Henry Clay Finley. Appellants filed this suit to recover proceeds of timber cutting by some of the appellees. A settlement fund consisting of these proceeds and the interest thereon has been held in escrow pending the outcome of this case. The trial court determined that the appellants have no interest in either the property or the settlement fund.

Appellants raise essentially two allegations of error: that the trial court erroneously reformed a deed, and that the trial court erroneously failed to impose a constructive trust in favor of the appellants on an interest in the land previously owned by the appellants’ predecessor in interest.

Henry Clay Finley died intestate in 1905 owning 220 acres in Shelby County and survived by fourteen children, who inherited fractional shares of the 220 acres as tenants in common. Henry Clay Finley’s children included Nathan B. Finley, H.A. Finley, James L. Finley, and A.P. Finley. All fourteen children have since died intestate. Appellants are the widow (Elzirah P. Finley) and children (Clay Pearson Finley, Sr., Elzirah Finley Drake, Elvirah Finley, and James M. Finley) of James L. Finley. The appellees are descendants of Henry Clay Finley’s other children.

Prior to 1920, H.A. Finley acquired the interest of Nathan B. Finley in the subject property. On November 19,1920, H.A. Finley and his wife conveyed to Laura J. Pearson, the mother of appellant Elzirah P. Finley, a one-sixth interest in the property. On December 31, 1926, Laura J. Pearson and her husband reconveyed to H.A. Finley a one-sixth interest in one hundred twenty acres of the property, leaving Laura J. Pearson as the record holder of title to a one-sixth interest in one hundred acres of the property. Referring to this one-sixth interest in one hundred acres, the trial court found as follows:

“The Court finds that neither Laura J. Pearson nor her heirs ever claimed this land, nor assessed said property in her name nor her heirs and the Defendants held out to the world it was their land. The Court finds that Laura J. Pearson intended to convey this land to the Defendants but inadvertently and not according to intention it was left out of the conveyance.”

Elzirah P. Finley appeals from this reformation of her mother’s deed.

The court’s judgment sets out the fractional interests owned by the descendants of Henry Clay Finley without mentioning James L. Finley’s widow or children (plaintiffs/appellants) and thus determines they have no interest in the property. In addition to Elzirah P. Finley’s claim to an interest in the property as an heir of her mother, the appellants claim an interest inherited from James L. Finley. The following facts trace James’s interest.

On March 5,1929, A.P. Finley mortgaged his interest in the property to I.C. Justice and H.R. Justice. I.C. Justice foreclosed and bought A.P.’s interest at a foreclosure sale on October 11,1929. On November 13, 1929, I.C. and H.R. Justice sued James L. Finley to recover on nine promissory notes made by A.P. Finley, the payment of which had been endorsed and guaranteed by James L. Finley. Default judgment for $247.60 was entered against James L. Finley; his interest in the subject property was levied upon and sold to I.C. Justice in August 1932. In February 1944, A.P. Finley repurchased from the heirs of I.C. Justice for the sum of $200.00 the interests in the subject property previously owned by A.P. Finley and James L. Finley. Appellants assert that A.P. acquired James’s interest in trust.

Regarding the deed reformation issue, the appellants correctly cite the law that “the party opposing the instrument must produce evidence that is clear, convincing, and satisfactory, which proves that the deed does not truly express the intention of the parties.” Pinson v. Veach, 388 So.2d 964, 966 (Ala.1980); Adams v. Adams, 346 So.2d 1146 (Ala.1977); Mid-State Homes, Inc. v. Anderton, 291 Ala. 536, 283 So.2d 426 (1973). They contend that this burden has not been met and the trial court erred in reforming the deed.

Henry Clay Finley purchased the subject property in six separate parcels. H.A. Finley deeded his interest in all six parcels to Laura J. Pearson. Laura J. Pearson deeded her one-sixth interest in three of the parcels back to H.A. Finley. Leaving aside any questions as to the dead man’s statute barring any testimony against Laura J. Pearson’s estate — no issue is raised against such evidence — we agree that the evidence does not support a reformation of Laura J. Pearson’s deed. Indeed, the appel-lees’ argument in favor of the reformation consists chiefly of quoting the trial court’s finding that neither Laura J. Pearson nor her heirs ever claimed any of the property and arguing that this finding is not to be disturbed under the ore tenus rule.

The appellees, contending that the deed did not truly reflect the intention of the parties, had the burden of proving by clear, convincing, and satisfactory evidence that Laura J. Pearson intended to reconvey all of the property to H.A. Finley. This they did not do. The evidence was in conflict as to whether Laura J. Pearson or her heirs claimed the property. Indeed, there was no evidence regarding Laura J. Pearson at all. Elzirah Finley, Mrs. Pearson’s daughter, testified that she regarded herself as owning a share in the property. For example, she testified that on one occasion at an unspecified date she stopped some men from removing sand from the property because “I didn’t know anything about it being sold, and that I was an heir.”

The appellees make much of the fact that Elzirah Finley and her children did not farm the property after James L. Finley’s death. The record shows that these children were infants when their father died, and they moved with their mother to the nearby town of Vandiver, where several of Henry Clay Finley’s children lived. After the early 1950’s, none of the cotenants of the Finley estate lived on or farmed the property. The land was used mostly for hunting in recent years. Appellees argue that they paid the taxes on the land with no contribution from Laura J. Pearson or her heirs, but just as this cannot suffice for adverse possession against a cotenant, Markstein v. Schilleci, 258 Ala. 68, 61 So.2d 75 (1952), it does not suffice to prove that Laura J. Pearson and her heirs claimed no interest.

The evidence was contradictory and vague as to who claimed what interest in the subject property. It thus does not clearly, convincingly, or satisfactorily support a finding that Laura J. Pearson intended to convey the entire interest she had received from H.A. Finley back to him in spite of the recitation of her deed that she only conveyed her one-sixth interest in 120 of the 220 acres. The trial court’s holding to the contrary is therefore reversed.

We next must address the appellants’ contention that the trial court erred in holding that they were not entitled to an interest in the subject property as heirs of James L. Finley. The trial court viewed the appellants as claiming that A.P. Finley redeemed his and James’s interest by the purchase in 1944 from I.C. Justice’s heirs:

“It is contended by Plaintiffs that the repurchase by Albert Prince Finley from I.C. Justice of the interests in and to the Subject Property previously held by Albert Prince Finley and James L. Finley effected an equitable redemption of the interest in said property previously owned by James L. Finley and said purchase inured to the benefit of the heirs at law of James L. Finley and that title to the interest previously owned by James L. Finley is now held by the heirs of Albert Prince Finley in trust for the heirs of James L. Finley. However, any alleged equitable redemption, if it existed, came too late, since more than one year had elapsed from the time of execution of Sheriffs deed.”

(Emphasis added.)

Appellants contend that this holding misconstrues their argument, that they did not argue that A.P. Finley redeemed James’s interest, but rather asserted that A.P. acquired James’s interest subject to a constructive trust. They assert that this is so because James merely promised to answer for A.P.’s debt, and it was this debt on which I.C. Justice sued James and levied for execution on his cotenancy interest in the subject property. They argue that A.P.’s reacquisition of the two brothers’ fractional shares was analogous to the extinguishment of an outstanding interest against the property by one tenant in common.

Appellants cite Gilb v. O’Neill, 225 Ala. 92, 142 So. 397 (1932), as holding that one tenant in common may not purchase an outstanding interest solely for his own benefit to the exclusion of his cotenants. While we agree that this is the law, we point out that the Court in Gilb concluded the general statement of the law by stating that the cotenants “may within a reasonable time elect to avail themselves of the benefit of the purchase of the outstanding interest or conflicting claim or the removal of the encumbrance from the common property.” Id., 225 Ala. at 96, 142 So. 397.

In Gilb the Court held that the co-tenants, who were minors at the time the outstanding interest was acquired and had reached their majority less than ten years prior to filing suit, were not barred by laches from contributing to the purchase price of the outstanding interest and having the purchase inure to their benefit. Appellants herein assert that they were under no duty to contribute to A.P. Finley’s repurchase of the Justices’ outstanding interest because the outstanding interest arose from a charge against A.P. Finley. While this may be the case, we do think the principle of Gilb holds, that the cotenants must elect to avail themselves of the benefit within a reasonable time.

Any claim by the appellants to an interest in the property was equally attributable to Laura J. Pearson’s share as to James L. Finley’s share, át least so long as the Henry Clay Finley heirs maintained the informal relations of cotenancy which persisted to recent times. With A.P.’s purchase of the two shares from the Justice heirs coming twelve years after the execution against James’s interest, equity and good conscience would require James’s heirs to establish their claim to a constructive trust within a reasonable time, rather than thirty-five years later and long after A.P.’s death. All of James’s children would have reached majority by 1953, twenty-one years after his death, and they brought this suit twenty-five years later.

Thus, although the trial court based its holding on the failure of an equitable redemption, we find that its decision is supported on the basis of laches, and we affirm.

The judgment of the trial court is affirmed as to the James L. Finley interest, reversed as to deed reformation regarding the Laura J. Pearson interest, and remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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

      . The trial court’s order treats the children as having V12 interests at the time of this conveyance; apparently two children had died without issue and thus Nathan’s plus H.A.’s interest totalled '/6.


author: PER CURIAM.

text:
    Ernest A. ROUSE v. Dan WILEY, etc., et al. H. Conrad FREEMAN v. Dan WILEY, etc., et al.
    81-964, 81-965.
    Supreme Court of Alabama.
    Oct. 28, 1983.

      Mylan R. Engel and M.A. Marsal, Mobile, for appellants.
    Maury Friedlander and Frank H. Kruse of Marr & Friedlander, Mobile, for appel-lees.
   PER CURIAM.

Dan Wiley, individually and upon the relation of the State of Alabama, as authorized by § 6-6-591, Code 1975, filed two petitions for writ of quo warranto challenging the rights of appellants Conrad Freeman and Ernest Rouse to serve upon the Mobile County Personnel Board. Freeman and Rouse each appeal from adverse judgments entered on separate jury verdicts. We affirm.

The complaints brought against Freeman and Rouse alleged that neither of them was legally holding his respective office as a member of the Mobile County Personnel Board, because neither then lived in the district which he was selected to serve. Therefore the petitions prayed both should be removed from office and their respective positions declared vacant. Freeman and Rouse answered by denying those allegations. In addition, each sought to assert an affirmative defense of bad faith on the part of the relator, Wiley, in bringing the actions.

It is Freeman’s and Rouse’s contention that Wiley’s sole motive in instituting the quo warranto proceedings against them was to further a conspiracy between Wiley, the mayor and other officials. The conspiracy allegedly was designed to remove Rouse and Freeman from the personnel board in order to replace them with individuals who would adhere to the conspirators’ views about the role and actions of the Board.

After allowing discovery on the issue of bad faith, the trial judge declined to allow evidénce concerning Wiley’s motives in initiating the suit to be introduced. A motion to reconsider this ruling was denied. Additionally, Wiley’s motion in limine, which sought to limit testimony in the trial solely to that of residency, was granted.

The case proceeded to trial and the jury returned verdicts against Freeman on one day and against Rouse on the following day. Judgments were entered accordingly. Motions for a new trial were denied.

The first issue raised by the appellants is whether the trial court committed reversible error by refusing to allow testimony as to the motives of Wiley in instituting the quo warranto proceedings.

Private individuals in Alabama are authorized by § 6-6-591, Code 1975, to institute quo warranto actions. The writ of quo warranto may issue at the judge’s discretion when brought by a private person as these were. 65 Am.Jur.2d Quo Warranto § 10 (1967). In the event that no public good is served by issuing the writ, it should be denied. Burkart v. Sawyer, 275 Ala. 171, 153 So.2d 248 (1963); Baxter v. State ex rel. Metcalf, 243 Ala. 120, 9 So.2d 119 (1942). However, even though an incidental benefit accrues to the relator, nevertheless the writ should issue if it benefits the public good. Floyd v. State ex rel. Baker, 177 Ala. 169, 59 So. 280 (1912).

In Fuller v. Hargrove, 277 Ala. 688, 174 So.2d 328 (1965), this court stated:

“[S]uch proceeding [quo warranto] will not be dismissed merely because the relator might be benefited by a judgment of ouster [citation omitted], still the proceeding is not to be employed for the sole benefit of the relator and where the public good will not also be served.” [Citations omitted.]”

Id., at 691, 174 So.2d 328.

Clearly, in quo warranto proceedings brought by private individuals, the trial judge should consider all the relevant circumstances before determining whether the public interest would be served should the writ issue. Baxter v. State ex rel. Metcalf, 243 Ala. 120, 9 So.2d 119 (1942). However, once the trial court decides to issue the writ, the respondents’ legal right to hold the office remains the exclusive concern.

In the^instant case, the trial court gave Rouse and Freeman ample opportunity to present circumstances warranting dismissal. Immediately before trial the following discourse took place:

“THE COURT: ... Do you want to make any showing about what you would expect to show as regard to motive, Mr. Marsal?
“MR. MARSAL: Yes, sir.
“THE COURT: Make it.
“MR. MARSAL: In regard to witnesses?
“THE COURT: Yes, sir.
“MR. MARSAL: You want the testimony?
“THE COURT: I want whatever you want for your record.
“MR. MARSAL: You want me to state for the Court what we expect the evidence to be in regard to motive?
“THE COURT: Yes, sir.
“MR. MARSAL: All right, sir.”

Thereafter, attorneys for Rouse and Freeman proceeded to proffer a detailed synopsis of evidence, gathered through discovery, concerning Wiley’s ill-will motives in filing the quo warranto proceedings. However, the trial court allowed the action to proceed. It is our holding that once the trial court considered all the relevant circumstances regarding motive, as mandated by Baxter, but nevertheless allowed the action to proceed, the court properly limited the issue to the residency of the respondents. See Stasch v. Weber, 188 Neb. 710, 199 N.W.2d 391 (1972); State v. Sorrell, 174 Neb. 340, 117 N.W.2d 872 (1962); Moran v. Teolis, 20 Ill.2d 95, 169 N.E.2d 232 (1960). We conclude that the trial court properly exercised its discretion in disallowing the admission of any evidence concerning the relator’s motives.

The second issue raised by Rouse and Freeman is whether the jury verdicts were against the great weight and preponderance of the evidence. After a careful review of the entire record, we conclude that more than ample evidence was admitted justifying the jury to find that both Rouse and Freeman: (1) Had physically abandoned their designated districts; (2) lacked a present intention to return; (3) had established another place of residence outside their respective districts; (4) with the intention to remain outside their districts permanently, or at least for an unlimited time. Osborn v. O’Barr, 401 So.2d 773 (Ala.1981); Rabren v. Mudd, 285 Ala. 531, 234 So.2d 549 (1970). Accordingly, the trial judge properly denied Rouse and Freeman’s motion for a new trial. Osborne v. Cobb, 410 So.2d 396 (Ala.1982).

Neither did the trial court abuse its discretion by giving the so-called “dynamite” or “Allen” charge, after a full day of inconclusive jury deliberations over a single issue. Ashford v. McKee, 183 Ala. 620, 62 So. 879 (1913).

Lastly, the trial court properly charged the jury that its verdict must be unanimous.

Accordingly, the judgment of the trial court is due to be and is hereby affirmed.

AFFIRMED.

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


text:
    A.D. TURNER, individually and Turner Welding & Repair Company, Inc. v. UNITED STATES FIDELITY AND GUARANTY COMPANY, a corporation.
    82-112.
    Supreme Court of Alabama.
    Oct. 28, 1983.
    Thomas B. Huie and Frank E. Lankford, Jr. of Huie, Fernambucq & Stewart, Birmingham, for appellants.
    L. Graves Stiff, III of Starnes & Atchi-son, Birmingham, for appellee.
   ALMON, Justice.

This is an appeal from a summary judgment upholding the validity of a completed operations hazard exclusion contained in a standard general liability policy.

Effective October 1, 1976, to the present, United States Fidelity & Guaranty Co. (USF & G) issued a general liability insurance policy to A.D. Turner, individually, and Turner Welding & Repair Company, Inc. (Turner Welding). The policy provided the following coverage:

“The Company will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of
A. bodily injury or
B. property damage
to which this insurance applies, caused by an occurrence, and the Company shall have the right and duty to defend any suit against the Insured seeking damages on account of such bodily injury or property damage .... ”

(emphasis in original)

Because Turner elected not to purchase coverage for the completed operations hazard, the policy contained a standard endorsement which excluded coverage for

“bodily injury and property damage arising out of operations or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned or rented to the Named Insured. “Operations” include.materials, parts or equipment furnished in connection therewith.”

(emphasis in original)

While covered by this policy, Turner Welding contracted with the Dixie Bronze Company to remove existing crane runways on a building and install two overhead cranes and fabricated runways in their place. It is undisputed that Turner Welding completed this job by December 1,1980.

On December 2, 1980, two employees of Irondale Fabricators were injured when a portion of the Dixie Bronze building or roof collapsed. They filed separate lawsuits against several contractors, and Turner Welding was later added as a party defendant based upon the allegation that Turner Welding negligently constructed, maintained, designed, or erected that portion of the building on which the employee was working at the time of the accident.

USF & G then brought a declaratory judgment action in Jefferson Circuit Court, alleging that because of the completed operations hazard exclusion in the subject policy, it had no duty to defend either Turner or Turner Welding nor to pay any judgment or settlement arising out of the two personal injury suits in which the insured Turner Welding had been added as a defendant.

Turner and Turner Welding filed an answer which alleged that conflicting clauses and/or ambiguities in the policy entitled them to coverage, defense, and indemnification in the personal injury suits brought against Turner Welding.

Both sides filed motions for summary judgment based upon the pleadings and the deposition of Turner. Counsel for both sides represented to the circuit court that no facts were in dispute, and the court granted summary judgment in favor of USF & G. Turner and Turner Welding then filed a notice of appeal to this Court.

Because Turner and Turner Welding stipulated that the occurrences which form the basis of the two personal injury suits fall squarely within the completed operations hazard exclusion, the sole issue presented for review is whether as a matter of law this exclusion is valid and enforceable when read in tandem with exclusion (a) of the subject policy.

Exclusion (a), which denies coverage for contractual liability assumed by the insured, provides in pertinent part that

“this exclusion does not apply to a warranty of fitness or quality of the Named Insured’s products or a warranty that work performed by or on behalf of the Named Insured will be done in a workmanlike manner .... ”

(emphasis in original)

Appellants contend that because this language allegedly implies coverage which is inconsistent with the completed operations hazard exclusion, we should construe the policy in a manner which will resolve all ambiguities in favor of broad coverage.

In Alabama, insurers have the right, absent statutory provisions to the contrary, to limit their liability and write policies with narrow coverage. Aetna Ins. Co. v. Pete Wilson Roofing & Heating Co., 289 Ala. 719, 272 So.2d 232 (1972). Thus, although the presence of an ambiguity in an insurance contract requires construction of the policy in a manner most favorable to the insured, Employers Ins. Co. of Alabama v. Jeff Gin Co., 378 So.2d 693 (Ala.1979), where there is no ambiguity in its terms, this Court must enforce the contract' as written and cannot defeat express provisions in the policy, including exclusions, by making a new contract for the parties. Westchester Fire Ins. Co. v. Barnett Millworks, Inc., 364 So.2d 1137 (Ala.1978). To arrive at a construction reasonably calculated to accomplish the intent and purpose of the parties, moreover, we cannot construe a sentence in the policy in isolation, but rather we construe it in connection with other provisions of the policy. Smith v. Kennesaw Life & Accident Ins. Co., 284 Ala. 12, 221 So.2d 372 (1969).

Although the validity of the completed operations hazard exclusion presents a case of first impression for this Court, our decisions upholding the validity of a similar provision, the products hazard exclusion, control the outcome of this case as well.

The products hazard exclusion, which was also included in the policy now before us, typically denies coverage for bodily injury and property damage caused by the insured’s products where the harm occurs away from the insured’s premises and after physical possession of the products has been relinquished to others. In Aetna Ins. Co. v. Pete Wilson Roofing & Heating Co., 289 Ala. 719, 272 So.2d 232 (1972), this Court upheld the validity of this exclusion in spite of the seemingly inconsistent language of exclusion (a). The majority of other jurisdictions have adopted our holding in the Pete Wilson case as precedent ,for their decisions upholding the validity of products hazard exclusions when read in conjunction with the standard form exclusion (a). See, e.g., Biebel Bros., Inc. v. United States Fidelity & Guar. Co., 522 F.2d 1207 (8th Cir.1975); LaMarche v. Shelby Mut. Ins. Co., 390 So.2d 325 (Fla.1980). The Fifth Circuit, moreover, in Ketona Chem. Corp. v. Globe Indem. Co., 404 F.2d 181 (5th Cir.1968), held that under Alabama law a completed operations hazard exclusion contained within a products hazard exclusion created no ambiguity in a standard liability insurance policy and was therefore valid and enforceable.

Because we consider the validity of the completed operations hazard exclusion to be the logical extension of our holding in the Pete Wilson case and its progeny, we hold that the completed operations hazard exclusion of the subject policy is valid and enforceable, thereby absolving USF & G of any duty to defend Turner or Turner Welding in the two personal injury suits.

The summary judgment in favor of United States Fidelity & Guaranty Company is affirmed.

AFFIRMED.

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

      . Appellants also argue that the collapse hazard exclusion (q)(2), which excludes coverage for structural property damage not included within the completed operations hazard exclusion, implicitly affords coverage for personal injuries inconsistent with the completed operations hazard exclusion. Yet because the policy defines the term “collapse hazard” to include only types of property damage, their reasoning is fallacious. We must therefore confine our decision to the alleged ambiguity between exclusion (a) and the completed operations hazard exclusion.

      . Because our decisions in United States Fidelity & Guar. Co. v. National Tank and Mach. Works, Inc., 402 So.2d 925 (Ala.1981), and Southern Guar. Ins. Co. v. Scott, 289 Ala. 159, 266 So.2d 602 (1972), reached only the definition of the term “completed operations” and did not address the validity of the exclusion itself, they have no relevance to the present case in which it is undisputed that all operations were “complete” at the time of the occurrences which form the basis of the personal injury suits.


text:
    Emory Allen PETERS, Jr. v. ALABAMA POWER CO., et al.
    82-248.
    Supreme Court of Alabama.
    Oct. 28, 1983.

      Jere L. Beasley of Beasley & Wilson, Montgomery, for appellant.
    Warren H. Goodwyn of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Montgomery, for appellees.
   ALMON, Justice.

This is an appeal from a summary judgment against the plaintiff, Emory Allen Peters, Jr., on his complaint seeking damages for fraud, breach of contract, and intentional interference with a contractual relation. The trial court, after considering the depositions, affidavits, exhibits, and pleadings, found that Peters was an employee at will and that the defendants had committed no actionable conduct.

Peters brought this suit against Alabama Power Company, Ben F. Hyde, plant manager at Alabama Power’s Martin Dam, and Gerald R. Elrod, superintendent at Martin Dam. Alabama Power employed Peters on December 7, 1981, as a security guard at Martin Dam. Peters alleged that the defendants informed him at the time he was employed that he could only be “discharged for cause which was explained to include such things as drinking on the job, stealing, The fraud count of the complaint alleged as follows: etc;

“On several occasions during the month of December, 1981, January and February of 1982, Defendants threatened to discharge Plaintiff from his job.”
“On or about February 21, 1982, Defendants represented to Plaintiff that if he would sign a letter of resignation leaving the date blank, they would not let him go. Said Defendants represented to Plaintiff that if he performed well over the two weeks next following, the letter of resignation would be torn up. Plaintiff was told by said Defendants that this jesture [sic] on his part would indicate to them his good faith and trustworthiness.
“Plaintiff signed such an un-dated letter due to the fear of losing his job, the fact that he was 52 years of age, had only a high school education, and was untrained in work other than in the textile field.
“Plaintiff performed his job in a satisfactory manner at all times material hereto.
“On or about March 19, 1982, Defendants dated the aforesaid letter and informed Plaintiff that he was dismissed effective March 21, 1982.
“At the time that Defendants made the aforesaid representations to Plaintiff concerning his job and the proposed letter of resignation, said Defendants intended to dismiss Plaintiff and fully intended to use the letter of resignation to accomplish this end.
“The representations made by Defendants were false and Defendants knew at the time that they were false.”

The breach of contract count realleged the above paragraphs and alleged that “Defendant Alabama Power Company breached its employment contract with Plaintiff by dismissing him without lawful cause.” The wrongful interference count alleged that Hyde and Elrod “wrongfully and intentionally interfered with the contract of employment between Plaintiff and Defendant Alabama Power Company.”

Hyde acknowledged in deposition that he told Peters that he (Hyde) had offered an undated letter of resignation when he first came to work for Alabama Power, but had not in fact done so:

“Q. ... [D]id you suggest a letter and state that you had previously done this when you went to work with the Company?
“A. Yes.
“Q. To show good faith on your part?
“A. Yes.
“Q. And had you, in fact, done that?
“A. Had written out an application?
“Q. Had you written an undated—
“A. Resignation?
“Q. Yes, sir.
“A. No, but I offered one.
“Q. You really hadn’t done that, though, had you?
“A. Hadn’t what?
“Q. You really hadn’t done it, though, had you?
“A. No.”

Hyde also admitted that he intended to let Peters go at the time he asked him for the letter of resignation:

“Q. All right. Do you recall the conversation that you and Mr. Elrod had prior to this date on which the letter was composed with Mr. Peters, the conversation you had prior to that date with Mr. Elrod concerning the possible discharge of Mr. Peters?
“A. We discussed his discharge, whether we might want to retain him or not under six months’ probation.
“Q. Well, was this prior to the time that you and Mr. Peters had the discussion over the letter?
“A. Yes, I think so.
“Q. And was a decision made to terminate him prior to that time?
“A. I think I had in the back of my mind somewhere that probably we were going to let him go.”

The trial court’s finding that Peters was an employee at will was not proper on summary judgment because of Peters’s statement in affidavit that he was told he could only be fired for cause. In the case of Davis v. Marshall, 404 So.2d 642, 645 (Ala.1981), the Court observed that “the record does not show that a contract of employment existed ... which would prevent [plaintiff’s] discharge at the option of [defendant] without cause.” (Emphasis added.) The Court held that, assuming plaintiff was an employee and not an independent contractor, she was an employee at will, subject to termination without cause.

In this case, Peters has raised a fact question as to whether he was hired under an oral contract whereby he could be discharged only for cause. The only written evidence of an employment contract between Peters and Alabama Power consisted of his employment application, a conditional letter of employment, a letter confirming his employment, and a “Management Procedure” from Alabama Power. The first three items contain nothing regarding the terms of employment. The management procedure document shows that Peters’s employment would be classified as “regular full-time employment ... which may be filled for an indefinite period.” Under “Requirements for Employment” the document states:

“The Company requires of an employee the following: satisfactory discharge of duties; conformity to Company policies, rules and directives; proper deportment; loyal promotion of Company interest; and the safeguarding of Company property. Outside personal business or other interests shall not be such as to interfere with or unduly detract from the discharge of the obligation of the employee to the Company.”

None of these documents are inconsistent with Peters’s allegations that he was told he could only be fired for cause. “[W]ritten and oral parts of a contract must be construed together.” Charter Corp. v. Lawrence Const. & Development Co., 289 Ala. 300, 304, 267 So.2d 147 (1972); King v. Capitol Amusement Co., 222 Ala. 115, 130 So. 799 (1930). Thus, if Peters can establish that he was hired under an oral contract whereby he could only be fired for cause, he might establish that the defendants have committed an actionable wrong, contrary to the holding of the trial court in granting summary judgment.

We note that the defendants’ answer raised the Statute of Frauds, but this defense does not entitle the defendants to summary judgment under the holding in Kitsos v. Mobile Gas Service Corp., 404 So.2d 40 (Ala.1981).

For the reasons stated, the judgment of the trial court is reversed and the cause remanded.

REVERSED AND REMANDED.

TORBERT, C.J., and FAULKNER and ADAMS, JJ., concur.

EMBRY, J., concurs in the result.


author: BEATTY, Justice.

text:
    Ralph P. EAGERTON, Jr., as Commissioner of Revenue of the State of Alabama v. EXCHANGE OIL AND GAS CORPORATION, et al.
    79-823.
    Supreme Court of Alabama.
    Nov. 4, 1983.
    Charles A. Graddick, Atty. Gen., and B. Frank Loeb, Chief Counsel, and Charles E. Crumbley and John J. Breckenridge, Asst. Counsel, Department of Revenue and Asst. Attys. Gen., for appellant.
    Rae M. Crowe and Edward A. Dean of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, and Euel A. Screws, Jr. of Copeland, Franco, Screws & Gill, Montgomery, for appellees Union Oil Co. of California, Getty Oil Company and Exchange Oil & Gas Corp.
    C.B. Arendall, Jr. and Louis E. Braswell of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee The Louisiana Land and Exploration Co.
   BEATTY, Justice.

This case was remanded by the Supreme Court of the United States to enable this Court to determine whether the partial invalidity of the pass-through provisions of Act 79-434 entitled the plaintiff oil and gas producers to a refund of taxes paid by them under protest.

For a review of the litigation which culminated in that order, see Eagerton, Commissioner v. Exchange Oil and Gas Corporation, 404 So.2d 1 (Ala.1981); Exxon Corporation v. Eagerton, Commissioner, - U.S. -, 103 S.Ct. 2296, 76 L.Ed.2d 497 (1983).

In its opinion of June 8, 1983, the Supreme Court of the United States decided that the pass-through provision of Act 79-434 was pre-empted by federal authority “over wholesale sales of gas in interstate commerce, for it barred gas producers from increasing their prices to pass on a particular expense — the increase in the severance tax — to their purchasers.” The pass-through prohibition was upheld, however, insofar as it applied to sales of gas in intrastate commerce.

The Commissioner of Revenue now concedes the invalidity of the entire pass-through provision, for, as stated in his brief:

“[T]he only question which remains with regard to the interpretation and implementation of the severability clause is whether Act 79-434 is still capable of fulfilling the apparent legislative intent, after the Pass-Through Prohibition is deleted.”

And further stated in brief:

“In view of the foregoing arguments and cited authorities, it is the position of the Commissioner of Revenue of the State of Alabama that the separability clause contained in Act 79-434 Acts of Alabama is to be given effect and the remainder of Act 79^434 is sufficient to accomplish the legislative purpose as stated in the Act and thus the remainder of the Act should be sustained with the Pass-Through Prohibition omitted.”

The narrow issue before this Court, therefore, is whether the remaining provisions of Act 79-434 are enforceable, absent the statutory proscription against passing on the applicable severance tax by the producer.

On remandment, this Court has been favored with excellent briefs by the parties.

As stated in its title, Act No. 79-434 was an act:

“To amend Code of Alabama 1975, Sections 40-20-2 and 40-20-8, so as to increase the rate of tax; to provide further for distribution of the proceeds of the tax; and to provide certain exemptions from the increased rate.”

This statement was followed by Section 1, whose language expressly amended Code of Ala.1975, § 40-20-2, which also had imposed a severance tax. The statute as amended by Act 79-434 read:

“§ 40-20-2. (a) There is hereby levied, to be collected hereafter, as herein provided, annual privilege taxes upon every person engaging or continuing to engage within the State of Alabama in the business of producing or severing oil or gas as defined herein, from the soil or the waters, or from beneath the soil or the waters, of the state for sale, transport, storage, profit or for use. The amount of such tax shall be measured at the rate of six per centum of the gross value of said oil or gas at the point of production. All wells producing less than 26 barrels of oil per day shall be taxed at the rate of four per centum (4%) of the gross value of said oil or gas at the point of production. All wells that come into production after the effective date of this Act shall be taxed at the rate of four per centum (4%) of the gross value of said oil or gas at the point of production for a period of ten years after production begins. Ten years after production begins, such tax shall then be imposed at the rate of six per centum (6%) on such wells that go into production after the effective date of this Act. Provided, however, that said additional increase shall be limited to those oil and gas wells from between 15,000 and 15,800 feet in the smackover formation, (b) The tax is hereby levied upon the basis of the entire production in this state, including what is known as the royalty interest, on which production the amount of such tax shall be a lien, regardless of the place of sale or to whom sold, or by whom used, or the fact that the delivery may be made to points outside the state; and the tax shall accrue at the time such oil or gas is severed from the soil or the waters, or from beneath the soil or the waters, and in its natural, unrefined, or unmanufac-tured condition, (c) A county, city, town or municipality of the state of Alabama shall not establish, levy, impose or collect as a condition of doing business or otherwise, any tax, fee, license or charge, whatsoever, directly or indirectly, on or with respect to the production, treating, processing, ownership, sale, storage, purchase, marketing, or transportation on any oil or gas produced in the state of Alabama and on which severance taxes have been paid to the state of Alabama, or upon the business of producing, treating, processing, owning, selling, buying, storing, marketing or transporting such oil, or gas or upon the ownership, operation or maintenance of plants, facilities, machinery, pipe lines, gathering lines or any equipment, whatsoever, which are, or may be necessary or convenient to the production, treating, processing, ownership, storage, sale, purchase, marketing, or transportation of such oil or gas; provided, that nothing herein shall be construed to prohibit, limit or restrict a county, city, town or municipality from imposing and collecting ad valorem taxes on any property, real or personal not otherwise now exempted by law; further, the limitation herein imposed upon counties, cities, towns and municipalities shall not apply to any county, city, town or municipality which does not receive a share of the severance tax under the provisions of this article, (d) Nothing contained herein shall be deemed to limit or to enlarge the authority of a county, city, town or municipality to levy taxes or licenses on oil refining facilities located therein or on the suppliers of services or goods not including oil or gas to those persons engaging in the business of producing, treating, processing, owning, selling, buying, storing, marketing or transporting such oil or gas. Any person who is a royalty owner shall be exempt from the payment of any increase in taxes herein levied and shall not be liable therefor, (e) The privilege tax herein levied shall be absorbed and paid by those persons engaged in the business of producing or severing oil or gas only, and the producer shall not pass on the costs of such tax payments, either directly or indirectly, to the consumer; it being the express intent of this act that the tax herein levied shall be borne exclusively by the producer or severer of oil or gas.”

Section 2 of Act 79-434 amended § 40-20-8, dealing with the allocation and distribution of taxes collected, and made other but like provisions.

The severability clause is found in Section 3:

“The provisions of this act are severa-ble. If any part of this act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.”

The purpose of subsection (e), according to the appellees, denotes the express intent of the legislature to include the pass-through prohibition, without which, the entire act fails. This follows, the appellees maintain, because that provision was a material inducement to the remainder of the act, as evidently expressed by the legislature. The purpose of the act, they contend, was to increase the severance tax and to provide certain exemptions from that increase, the increase being linked with the exemptions, with the prohibition being one of the exemptions.

We agree with the appellees, as we must, that the pass-through prohibition was intended by the legislature to be a constituent portion of Act 79-434. However, we cannot agree that its absence requires the remainder of the act to fail.

Severability clauses have found favor in our decisions. Hamilton v. Autauga County, 289 Ala. 419, 268 So.2d 30 (1972), elaborated upon the effect of such clauses, citing Allen v. Walker County, 281 Ala. 156, 199 So.2d 854 (1967). This Court stated:

“ ‘We recognize that a separability clause shall be given effect, where possible, to save legislative enactment ..., that is if the invalid portion is not so intertwined with the remaining portions that such remaining portions are rendered meaningless by the extirpation, in which event it must be assumed that the legislature would not have passed the enactment thus rendered meaningless 289 Ala. at 426, 268 So.2d 30.

That opinion continued:

“We further recognize that,
“ ‘... [WJhere a statute is thus partly infected with invalidity ... the severable or saving clause thereof ... is persuasive to the judicial mind the legislature intended that should the invalid portion be stricken, the valid part should survive. [Citations omitted.]” 289 Ala. at 426, 268 So.2d 30.

Applying this principle to this statute, it is unquestionable that the legislature intended that Act 79-434 increase the severance tax on oil and gas; intended to provide for distribution of the tax receipts; and intended to provide for certain exemptions from the increased rate. Elimination of the pass-through prohibition does not inhibit the effectuation of the remaining portions, however. They are not so intertwined as to render their application meaningless; indeed, it appears that they can be administered without the assistance of the pass-through provision. Only the incidence of the tax is affected by that provision. Its absence does not affect the remaining clear purpose: raising and distributing revenue. Moreover, the presence of the severability clause clearly indicates that the legislature also intended that the exemptions be sever-able, and thus provided for the survival of the remaining portions should the exemptions later be stricken from the act. It follows that, absent the pass-through prohibition found in Section 1(e) of Act 79-434, which is excised under the severability clause, the remaining portions of Act 79-434 are to be given effect. Accordingly, the plaintiff oil and gas producers are not entitled to a refund of taxes paid by them under protest.

On remand, the judgment of this Court of July 10,1981, as modified by this opinion, is affirmed.

AFFIRMED.

TORBERT, C.J., and MADDOX, AL-MON, SHORES, EMBRY and ADAMS, JJ., concur.


author: JONES, Justice.

text:
    Hermon E. WARREN, Jr., John M. Warren, David B. Freeman, III, Sharon Freeman Paine and Michael Warren Freeman v. Arthur T. OUSLEY, Helen J. Herrman and Elizabeth Ousley Kirn.
    82-270.
    Supreme Court of Alabama.
    Nov. 4, 1983.

      Marion R. Vickers, Jr., and J. Marshall Gardner of Vickers, Riis, Murray & Curran, Mobile, for appellants.
    Taylor D. Wilkins, Jr. of Wilkins, Bankes-ter & Biles, Bay Minette, for appellees.
   JONES, Justice.

This is a will contest case. Contestants appeal from a final judgment, based on a jury verdict, finding Proponents/Appellees to be the sole beneficiaries under a last will and testament of Agnes R. Warren, executed July 19,1977, as opposed to an earlier will and codicil of Mrs. Warren, proffered by Contestants and dated December 2,1970. We affirm.

FACTS

Hermon E. Warren, who died in August 1977, and Agnes R. Warren, who died in December 1981, were husband and wife. No children were born of this marriage; however, Mr. and Mrs. Warren each had three children by prior marriages. Hermon E. Warren’s two surviving children, and the children of one deceased child, are the Contestants. Agnes R. Warren’s three children are the Proponents.

Because the will here under contest involves Mrs. Warren’s exercise of a testamentary power of appointment granted her in her husband’s will, we look first to the pertinent provisions of that will. Mr. Warren’s will, dated January 22,1977, left to his natural children certain designated personal property, such as jewelry, clothing and personal effects; an undivided ½ interest in all household furniture, rugs, pictures, books, silverware, china, kitchen furnishings, etc., as well as total interest in any automobiles owned by him at his death.

Finally, Mr. Warren divided his “residuary” estate into two trusts, with Merchants National Bank of Mobile appointed as trustee. Each trust constituted 50% of Mr. Warren’s adjusted gross estate, less those items of personal property bequeathed to his children. As to the disposition of both trusts, we quote from pertinent portions of Mr. Warren’s will:

“TRUST ONE
“The Trustee shall manage and control Trust No. One for the exclusive use and benefit of my widow, AGNES REDING WARREN, and shall pay and distribute to her in as nearly equal monthly installments as may be practicable, but at least annually, all of the net income accruing therefrom so long as she may live and, upon her death, shall pay, distribute and deliver the entire then corpus of Trust No. One, together with all undistributed income and profits therefrom, in such manner as she, my said widow, by her last will and testament, shall direct and appoint.
“TRUST TWO
“The Trustee shall manage and control Trust No. Two for the benefit of my widow, AGNES REDING WARREN, and shall pay and distribute to her in as nearly equal monthly installments as may be practicable all of the net income accruing therefrom so long as she may live and, upon her death, shall divide such trust estate into as many parts as I have then living children and deceased children leaving one or more lineal descendants surviving, and shall pay and deliver one such share, free from trust, to each living child of mine and one such share, free from trust, to the lineal descendant, or per stirpes to the lineal descendants, of each deceased child of mine.”

We turn our attention now to those facts leading up to the execution of the will here in question. Pursuant to a prior will, executed by Agnes Warren in December 1970, her entire estate was to pass to her three natural children. Additionally, by way of a codicil executed the same date, she exercised the power of appointment granted to her under Mr. Warren’s will in favor of his three natural children.

Hermon Warren became ill and was hospitalized in July 1977. Shortly thereafter, certain of the Proponents arrived at the Warren home to stay with their mother. During this period, Arthur Ousley, one of the Proponents and Mrs. Warren’s natural son, examined a copy of Mrs. Warren’s 1970 will and codicil; whereupon, he informed his mother that all her property and assets, under those instruments, would pass to Mr. Warren’s natural children, as opposed to her own.

After being told by his mother that this was not her desire, Mr. Ousley retained a local attorney to prepare a new will for her, leaving everything, including property over which she might have a power of appointment, to himself and her other two children. This new will was executed by Mrs. Warren on July 19, 1977. The next day, Mrs. Warren was placed in Villa Mercy Nursing Home by her children. Within a few months, she was legally declared mentally incompetent, and a guardian was appointed to manage her affairs.

After Mr. Warren’s death, his will was admitted to probate, and its provisions promptly carried out. The proceeds from the sale of the family homeplace were divided equally between Mr. Warren’s children and Mrs. Warren’s children. Following Mrs. Warren’s death, her 1977 will was admitted to probate. Contestants’ efforts, seeking to invalidate this will and probate her 1970 will, were unsuccessful. Contestants appeal.

ISSUES

Although multiple grounds of contest were alleged and pursued at trial, the only ground involved in the issues presented on appeal is the alleged fraud in the procurement of Mrs. Warren’s 1977 will. Essentially, Contestants claim that Mr. Ousley misrepresented a material fact to his Mother when he told her that, under her 1970 will and codicil, all of her property would go to Mr. Warren’s children. Because only the property in the 1970 codicil over which she had the power of appointment, in fact, would have gone to his children, Contestants insist that this “misrepresentation” resulted in Mrs. Warren’s execution of the 1977 will, in which she exercised this power in favor of her own children.

First, Contestants contend the trial judge erred in denying their motion for directed verdict (and, subsequently, their post-trial motion for JNOV), asserting that Proponents’ misrepresentation of a material fact, as a matter of law, constituted fraud in the procurement of Mrs. Warren’s 1977 will.

Alternatively, Contestants allege that the jury’s verdict, and the judgment entered thereon, should be set aside as being so against the great weight and preponderance of the evidence, bearing on the factual issue of fraud, as to be clearly wrong and manifestly unjust.

DECISION

I. Directed Verdict/JNOV Issue

(Sufficiency of the Evidence)

Hanson v. Couch, 360 So.2d 942 (Ala.1978), stated the applicable standard of review:

“A motion for judgment notwithstanding the verdict tests the sufficiency of the evidence in the same way as does the motion for directed verdict at the close of all the evidence. Ala.R.Civ.P. 50, Committee Comments. Granting the motion for judgment notwithstanding the verdict says, without weighing the credibility of the evidence, there can be but one reasonable conclusion from the evidence as to the proper judgment. 5A Moore’s Federal Practice ¶50.07[2], at p. 50-76.
“When reviewing the propriety of a trial court’s order granting a motion for judgment notwithstanding the verdict, the evidence must be viewed in the light most favorable to the party who secured the jury verdict. Spurlin v. General Motors Corp., 528 F.2d 612 (5th Cir.1976); White v. Packer, 345 So.2d 312 (Ala.Civ.App.1977). See Justice Maddox’s dissent in Bethune v. City of Mountain Brook, 336 So.2d 148, at p. 151 (Ala.1976). Such motion should be denied if there is any conflict in the evidence for the jury to resolve and the existence of such conflict is to be determined by the scintilla rule. White v. Packer, supra; McLarty v. Wright, 56 Ala.App. 346, 321 So.2d 687 (1975).”

Citing Hornaday v. First National Bank of Birmingham, 259 Ala. 26, 65 So.2d 678 (1952), Contestants, arguing for JNOV, insist that, because of the confidential relationship between mother and son, they need to prove only constructive fraud, as opposed to the higher burden of proving actual fraud, in order to invalidate the 1977 will. Applying the directed verdict/JNOV standard of review enunciated in Hanson, supra, we find it unnecessary to decide as between the two degrees of fraud in this instance. Even if we assume, here, that proof of constructive fraud is the applicable burden, the evidence, when viewed most favorably to Proponents presented a question of fact for the jury. Indeed, such was the holding of Hornaday. See, also, Cook v. Brown, 393 So.2d 1016 (Ala.Civ.App.1981).

II. The New Trial Issue

(The Weight and Preponderance of the Evidence)

Although Contestants present the directed verdict/JNOV issue, they candidly acknowledge that their burden to prove fraud in the procurement of the will, as a matter of law, is a heavy one. Consequently, because of the legal presumption of the validity of the 1977 contested will, coupled with the further acknowledgement of Mrs. Warren’s unconditional power of appointment, Contestants place the primary emphasis of their argument on an alternative allegation of error: that the trial court erred in its denial of their motion for a new trial, based on the great weight and preponderance of the evidence.

As stated in Linnard v. Shields, 368 So.2d 14 (Ala.1979):

“The case was tried before a jury, which found that the instrument was valid and was the will of the testatrix. The contestant filed a motion for a new trial, and claimed that the jury’s verdict was contrary to the evidence. The trial court denied the motion. Contestant appealed.
“The testimony given at trial was in conflict as to the mental and physical condition of the testatrix during the time period surrounding the making of her will. There is a well-established doctrine in this state which has recently been reiterated by this Court in Fletcher v. DeLoach, 360 So.2d 316 ([Ala.] 1978), which states:
“ ‘In cases of this nature, the verdict of the jury cannot be overturned unless shown to be clearly wrong and unjust. Wilson v. Payton, 251 Ala. 411, 414, 37 So.2d 499, 501 (1948); Watkins v. Yeatman, 189 Ala. 370, 66 So. 707 (1914). The refusal of the trial judge to grant the appellant-proponent’s motion for new trial strengthens this presumption in favor of the. verdict. Johnson v. Howard, 279 Ala. 16, 22, 181 So.2d 85, 91 (1965).’ ” 368 So.2d at 15.

Although Linnard, supra, dealt with mental incapacity to execute a will, rather than fraud in its procurement, the new trial standard of review set out therein is equally applicable here. As Contestants insist, however, despite a presumption of correctness accorded the trial court in its refusal to grant their motion for new trial, if, after indulging in this presumption, the appellate court finds the preponderance of the evidence so decided as to establish that the verdict is unjust, that court is duty bound to set it aside and order a new trial.

It should be noted that this new trial standard is called into play only if there is sufficient evidence to overcome a motion for directed verdict. Otherwise, if a motion for directed verdict was refused, but should have been granted for lack of requisite proof, a post-trial motion for JNOV is due to be granted, rather than the granting of a motion for a new trial. A judgment, where the challenge is grounded on the objective JNOV test, does not carry with it on appeal a presumption of correctness, as does the trial court’s ruling where the evidence is tested against the more subjective new trial standard. See First Alabama Bank of Montgomery, N.A. v. Coker, 408 So.2d 510 (Ala.1982). (We note an inadvertence in footnote 1 of Coker. The word “sufficient” in the last sentence of that footnote should read “insufficient.”)

As is our duty when, as here, the weight and preponderance of the evidence test is invoked, we have read and considered all the evidence of record. A recitation of its details would serve no useful purpose. A few observations will suffice.

Hermon Warren’s will gave Agnes Warren an absolute power of disposition by appointment over certain of his assets (i.e., Trust One). In other words, she was to enjoy such assets for life, and, then, through her power of appointment, dispose of them by will as she, in her sole discretion, saw fit. This she did. As we have earlier concluded, Contestants’ argument that Proponents’ discussions with their mother, concerning her 1970 will and codicil, constituted fraud, as a matter of law, is without merit.

The jury was free to conclude, if anything, that Proponents may have influenced their mother to do not only that which she had every legal right to do, pursuant to Mr. Warren’s directives (i.e., exercise her power of appointment in favor of whomever she pleased), but also that which she most naturally wished to do. Any questions as to the existence vel non of fraud were merely factual, and properly submitted to the jury.

Furthermore, the jury was free to reject any inference of undue influence amounting to fraud, despite the element of confidential relationship, on the factual basis that such influence as may have been exerted was not adverse as among her own children, but only as between her children on the one hand and Mr. Warren’s children on the other. It goes without saying that Mrs. Warren could not have been fraudulently induced into following a course of action which she, of her own free will, and in accordance with her natural desires, preferred to follow. Such a conclusion was within the jury’s factfinding prerogative under the reasonable inferences raised by the evidence of record.

The common thread running through Contestants’ “preponderance of the evidence” argument is summarized in the concluding paragraph of their brief:

“It was the intent of both Hermon Warren and Agnes Warren that their separate estates go to each one’s children. The fraudulent conduct of Proponents has frustrated the testamentary plans of Hermon and Agnes Warren and has produced a result intended by no one except the Ousley children.”

While this may be excellent jury argument, amply supported by reasonable inferences from the evidence, we are not convinced that the jury’s findings of contrary inferences are so irrational as to result in an unjust verdict. In the first place, the jury was free to infer from the evidence, or from the lack thereof, that Mrs. Warren’s separate estate, which was to pass to her natural children under her 1970 will, was of such nominal value as to render her children’s representations substantially true.

As to the “testamentary plans” of Her-mon and Agnes Warren, we can only glean those plans from the clear and unequivocal terms of their respective last wills. It was Mr. Warren’s prerogative to leave his property as he saw fit. He chose to establish two separate trusts of equal parts, aggregating substantially all of his assets, for the use and benefit of his wife during her lifetime, if she survived him, with one-half of the total trusts remaining upon her death passing to his children; and she was given the absolute power of appointment with respect to the other half. She exercised that power in favor of her children. This was the “testamentary plan” presented to the jury and upon which it rendered its verdict, effectuating virtually an even division of the marital estate between the two sets of children.

Mr. Warren could have effected the passage of all his property to his children simply by withholding any power of appointment from his wife with respect to any part of the trust. Because he gave his wife the absolute power of appointment, under the evidence before us, we are unwilling to say that a jury verdict upholding her exercise of that right, as against a claim of fraudulent inducement, should be set aside as unjust, particularly, where her exercise of that power was in favor of the natural objects of her bounty, in equal shares.

Therefore, the judgment of the trial court validating Mrs. Warren’s 1977 will, is due to be, and hereby is, affirmed.

AFFIRMED.

TORBERT, C.J., and MADDOX, BEAT-TY and ADAMS, JJ., concur.


author: MADDOX, Justice.

text:
    Doris COTTON v. Betty Cotton McMURTRY and Bobby Cotton Wiley.
    82-396.
    Supreme Court of Alabama.
    Nov. 4, 1983.

      W. Phil Eldridge, Hartford, for appellant.
    James W. Kelly of Kelly & Knowles, Geneva, for appellees.
   MADDOX, Justice.

The instant case involves two questions: Whether there was sufficient evidence offered by the plaintiffs to support the ordered sale of land pursuant to Code 1975, § 35-6-20; and whether the trial court erred in allowing plaintiffs to amend their complaint following the trial, but prior to the entry of the trial court’s order, so as to remove a parcel of land from the trial court’s consideration in the sale for division proceedings.

This suit was brought to sell for division land held by co-tenants. The parties stipulated that defendant-appellant, Doris Cotton, owned an undivided three-fourths interest in 991.2 acres, designated as Parcel One, and an undivided one-half interest in five acres, designated as Parcel Two. They further stipulated that appellees, Betty Cotton McMurtry and Bobby Cotton Wiley, owned an undivided one-fourth interest, or one-eighth each, in the lands designated as Parcel One, and an undivided one-half interest, or one-fourth each, in the lands designated as Parcel Two.

Plaintiffs alleged that the designated lands could not be equitably divided or partitioned among the joint owners. Following a trial where testimony was heard without a jury, the trial court found that the lands in question could not be equitably divided or partitioned among the parties and ordered it sold at public auction. Appellant’s motion for a new trial was denied, and this appeal followed.

Appellant asserts that there is insufficient evidence to substantiate a conclusion of the trial court that the lands in Parcel One and Parcel Two could not be equitably partitioned. The burden of proving that a parcel cannot be fairly and equitably divided is upon the party seeking a sale for division. See Watson v. Durr, 379 So.2d 1243, 1244 (Ala.1980), and Prosch v. Prosch, 47 Ala.App. 33, 37, 249 So.2d 855, 859 (Ala.Civ.App.1971). If a parcel can be divided in kind, however, it must be partitioned without a sale. See Hall v. Hall, 250 Ala. 702, 705, 35 So.2d 681, 683 (1948). Where, as here, the trial court heard the evidence without the benefit of a jury, the presumptions of the ore tenus rule apply and the trial court’s conclusions will not be disturbed unless they are palpably erroneous or manifestly unjust. See Sanford v. Sanford, 355 So.2d 365, 369 (Ala.1978).

The two disinterested witnesses who testified concerning partitioning the property, attested to the extreme difficulty in fairly and equitably dividing the land in kind. Danny Pulford, a licensed real estate broker in Geneva County, testified, on cross-examination by appellant’s counsel, concerning the property as follows:

“Q You testified that it would be difficult to divide this land. Why do you say that?
“A Because you’ve got so many variables of the land. You’ve got timber that’s located in different areas, and pasture, and row-crop in different areas. The biggest thing that I see is it all lies in one block there, most of it. You’ve got roads, but most of it lies in one block with little highway frontage for the back parts.”

On direct examination by appellees’ counsel, Greg Harrison, the head of the appraisal office for ad valorem taxes for Geneva County, testified as follows:

“Q Based upon your experience in what you’re doing, and your qualifications, and in viewing the land, and all of the factors relating thereto, do you have an opinion as to whether or not this land can be partitioned in kind to the extent that Mrs. Doris Cotton can receive three-fourths value in lands, and the plaintiffs receive one-eighth value each of the true value of what the land is worth?
“A Of the true value?
“Q Yes.
“A It would be difficult. I could probably split it up mathematically and give the same number of acres, but whether those same number of acres would have the—
“Q Would that be a representation of the true value to which each of them are entitled to?
“A No. If some got on the river, and some on the low side of the road; the west side of the Neal Metcalf Road, that would be lower — I could probably make it look good on paper.
“Q But would it be a true representation of the value to which they are entitled?
“A No.
“Q You heard Mr. Fulford testify with regard to the topography of the low land and the high land?
“A Yes.
“Q Did you view the lands from the same — in the same light that his testimony revealed?
“A Yes.
“[Appellees’ counsel] That’s all.”

On cross-examination, Mr. Harrison testified further as to the physical characteristics of the land and the problems posed by those characteristics in partitioning the land in question:

“Q I know we haven’t got an acre of land but we’ve got nine hundred and something acres of land, but that alone shouldn’t say that we can’t partition the land, should it?
“A Just the fact that it’s a large quantity of acres, no, that wouldn’t, but it’s just the outlay of it. There’s probably over a mile of it — maybe a mile of it touching highway, and then the rest of it is not. You would have to consider right-of-ways and newly cut right-of-ways, and the topography of the land, the value of the timber. If you had it cruised your timber cruiser would come back and tell you there’s so much timber on there and it’s valued at this, but then you’ve got to isolate each one of those.”

Each appellee testified that a division in kind was not possible, while the appellant testified that a division in kind was possible.

After reviewing the testimony of the witnesses in this case, we conclude that the land was of such varied use and quality as to authorize the finding by the trial court that the land could not be equitably divided among the parties. See English v. Brantley, 361 So.2d 549, 552 (Ala.1978); Meador v. Meador, 255 Ala. 688, 53 So.2d 546, 547 (1951); Stacey v. Stacey, 250 Ala. 187, 189, 33 So.2d 898, 899 (1947).

With regard to the second issue of this appeal, the appellees moved to amend their complaint by striking a third parcel of land described in the pleadings. During the motion’s presentation to the trial court, it was stipulated that in addition to the interest owned by the appellees and the appellant, a third party owned an interest, specifically, a life estate, in the third parcel. Appellant contends that the trial court erred by allowing this third parcel to be struck from the appellees’ complaint. We disagree.

The record shows, unequivocally, that the possibility of partitioning this parcel of property was never considered or mentioned at the trial. The trial court obviously treated the appellees’ motion to strike the third parcel from their pleadings as a motion for amendment to conform the pleadings to the evidence pursuant to Rule 15(b), Ala.R.Civ.P. Although appellant asserts that an amendment of the appellees’ pleading for this purpose is improper, the Committee Comments to Rule 15 read: “[T]he test as to whether amendment is proper will be functional, rather than ... conceptual.” We perceive no prejudice to the appellant resulting from the trial court’s permitting this amendment; accordingly, the judgment is due to be affirmed.

AFFIRMED.

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


text:
    ATMORE FARM AND POWER EQUIPMENT COMPANY v. Grady GLOVER.
    82-516.
    Supreme Court of Alabama.
    Nov. 4, 1983.
    W.E. Garrett, Atmore, for appellant.
    R. John Westberry, Pensacola, Fla., and Everette A. Price, Jr., Brewton, for appel-lee.
   BEATTY, Justice.

Appeal by defendant from a judgment for plaintiff in an action based upon fraud. We reverse and remand.

Plaintiff, Grady Glover, purchased a Trojan frontend loader tractor, model 304-A, from defendant on October 31,1979. Plaintiff dealt exclusively with William Banonse, defendant’s sales manager. The loader had been newly painted, and, according to plaintiff, he was told that the engine had been “majored” (completely overhauled). The engine “missed” upon being started, whereupon, plaintiff asserted, he was told it would be “majored” again. In discussing the purchase, Glover maintained, he was informed that the loader was a 1969 model, for which parts would be readily available; thus, he said, he believed he was buying a ten-year-old machine.

On the day following delivery of the loader, plaintiff began having problems with the engine and other parts as well, necessitating numerous repairs. Some of these expenses were paid for by plaintiff, while others were done by defendant at no cost to him. Ultimately, plaintiff initiated this action, alleging fraud in three counts: Count One alleged false representations knowingly made, that the machine was a 1969 model when in fact it was a 1964 model, and reliance by plaintiff; Count Two alleged that these representations were false and recklessly made, and relied upon; and Count Three alleged that these representations were false, were made by mistake with intent that plaintiff rely on them, and were relied upon.

The defendant’s answer denied the allegations of the complaint, and counterclaimed for the sum of $2,524.72 for work and labor done, equipment rental, parts, materials, and interest. The case was tried to a jury, which returned a verdict awarding plaintiff $20,000.00 compensatory damages and $10,000.00 punitive damages; ordering the return of the loader to defendant; and awarding the defendant $2,500.00 on its counterclaim.

The defendant presents several issues for our review. The first issue deals with an evidentiary question. On this first issue, defendant contends that the trial court erred in allowing plaintiff Glover’s testimony establishing the model year of the loader without requiring a proper predicate to overcome defendant’s hearsay objection. The record of the actual testimony follows:

“Q. (MR. WESTBERRY): Mr. Glover, have you discovered the true model year of that tractor?
“A. Yes, I have.
“Q. What is the model year, as you understand it?
“MR. GARRETT: I object to that, Your Honor. The proper predicate hasn’t been laid.
“THE COURT: If he knows of his own knowledge what the model year is? I overrule the objection if he knows of his own knowledge.
“MR. GARRETT: Model year?
“THE COURT: What the model year of the tractor is.
“(Plaintiff’s Exhibit 13 was marked for identification.)
“Q. (MR. WESTBERRY): I’ll ask you if you know from your own knowledge what the model year of this tractor is?
“A. It was built in 1963. It was sold in ’64.
“Q. How did you discover that?
“A. From the factory.
“Q. All right.
“MR. GARRETT: Your Honor, I am going to object to that. That’s hearsay evidence.
“A. I got a photostatic copy of the—
“MR. WESTBERRY. Wait.
“MR. GARRETT: It’s hearsay evidence, Your Honor. He doesn’t know when that tractor was sold.
“THE COURT: And he was informed by the—
“MR. WESTBERRY: Judge, we are not offering the statement for the truth of the matter but simply how Mr. Glover became aware of the information.
“MR. GARRETT: He doesn’t know that, Your Honor. He can’t testify to that.
“MR. PRICE: Your Honor, the serial numbers will appear on the bill of sale furnished us by Atmore Farm and Power. And they also appear on the document that Mr. Glover requested and received from Trojan Tractor. And that makes it a question of fact for this jury.
“THE COURT: I think it does. I overrule the objection.
“MR. GARRETT: Your Honor, I take exception to that. I don’t think he was present at the time it was made or the time it was sold.
“Q. (MR. WESTBERRY): Grady, let me show you Plaintiff’s Exhibit 13 which appears to be an envelope and some documents attached to it. Did you receive that envelope?
“A. Yes, I did.
“Q. How did you receive it?
“A. From Trojan.
“Q. Through the course of the U.S. Mail?
“A. Right.
“Q. And what is that? What is it?
“A. It’s a photostatic copy of the shipping date and who it was sold to, this Trojan loader.
“MR. GARRETT: Your Honor, I am going to object. That is not the best evidence.
“Q. (MR. WESTBERRY): Does the serial number which appears on the bill of sale provided you by Atmore Farm and Power Equipment Company, does that same serial number appear on that shipping statement?
“A. Yes, it does. Right there (pointing).
“Q. How was it that you received that information?
“A. I called them and asked them how old or what model that tractor was. And they told me. And I asked them if they would send me something stating that that I could have for myself. And they sent me this photostatic copy.
“Q. Did you have any difficulty contacting the Trojan manufacturer?
“A. None whatsoever.
“Q. Okay.
“(Exhibit handed to defense counsel.)
“Q. (MR. WESTBERRY): While Mr. Garrett is looking at that, I want you to look at Plaintiff’s Exhibit 6, the bill of sale, and if the serial number appears on there would you read it?
“A. 691102.
“Q. All right. Is this the bill of sale that you received from Mr. Banonse for Atmore Farm and Power?
“A. That’s the bill of sale.
“MR. WESTBERRY: May I have the exhibit?
“(Pause).
“Q. (MR. WESTBERRY): Does that same serial number, Grady, appear on this shipping record? If it does, would you read that off of the information?
“A. 691102.
“MR. WESTBERRY: Judge, at this time I offer Plaintiff’s 13 into evidence.
“MR. GARRETT: I’m going to object, Your Honor. It’s not the best evidence.
“THE COURT: What would be the best evidence?
“MR. GARRETT: Sir?
“THE COURT: What would be the best evidence?
“MR. GARRETT: The original and the people who made it.
“THE COURT: That’s not an original but did you ever try to get the original?
“MR. WESTBERRY: No, sir. Grady, obtained this during the course of — on his own means.
“MR. GARRETT: He doesn’t know—
“MR. WESTBERRY: I don’t know what the best evidence would be.
“MR. GARRETT: —who is shipping that.
“THE COURT: He called the factory.
“MR. GARRETT: I understand. But he doesn’t know the person that shipped it to him. Doesn’t know whether they kept the records.
“THE COURT: That doesn’t matter. The same thing would go in the way of looking at an automobile serial number, Gene. I don’t think this violates — I’m going to let it in. I think it should go in.”

The defendant argues that the plaintiff’s statements establishing the model year were hearsay, because they were based upon a photostatic copy of a shipping document requested and received by plaintiff. The purpose of this line of questioning was to establish the model year of the loader. Plaintiff established that model year based upon the conversation he had with a representative of the factory which made the loader and a document sent to him by that representative.

Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of the matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. Gamble, McElroy’s Alabama Evidence § 242.01 (3d ed. 1977), quoting Cleary, McCormick on Evidence 584 (1972).

We note that the proponent of the photostatic copy of the shipping document stated that he was not offering it for the truth of the matter contained in it “but simply how Mr. Glover became aware of the information.” But it is apparent that Glover himself relied upon this photostatic copy of a purported bill of sale mailed to him from a manufacturer located in New Jersey to establish in evidence the year model of the loader in question. The year model of the loader was a material issue in the plaintiff’s case on fraud. Consequently, the photostatic copy was being used for a hearsay purpose, Meriwether v. Crown Investment Corporation, 289 Ala. 504, 268 So.2d 780 (1972). Had plaintiff, himself, testified to this information as told to him by his New Jersey informant, his statement would have been hearsay. Such a statement does not become competent by being reduced to writing. Thornton v. City of Birmingham, 250 Ala. 651, 35 So.2d 545 (1948). Cf. Kindig v. Rea, 334 So.2d 681 (Ala.1976). It was incumbent upon plaintiff as proponent of this statement to predicate its admissibility upon an exception to the rule against hearsay, which was not done.

In the circumstances presented here, it is clear that the defendant’s objection was timely made. Plaintiff was asked “if you know from your own knowledge what the model year of this tractor is,” and after he had answered, was then asked “How did you discover that?” “From the factory,” he replied. It was at that point that defendant was made aware of plaintiff’s reliance upon the factory’s statement establishing the tractor’s model year and immediately made his hearsay objection. As stated in McElroy’s Alabama Evidence, § 426.01(3) at 794, dealing with analogous situations:

“The question may call for admissible matter, for example, but the witness gives an unresponsive answer containing inadmissible testimony. In such a situation the party against whom it is offered is unable to determine the inadmissibility until after the answer has been given.... ”

In his brief plaintiff seeks to justify the admission of this evidence in several ways. First, plaintiff asserts that the shipping document was authenticated by the telephonic identification process recognized in Alabama Power Company v. Jones, 212 Ala. 206, 101 So. 898 (1924) (telephone call to place of business; call answered by someone who conversed in context of employment at that business). The authentication of the source, however, would not furnish the credibility of the author of the writing so as to satisfy the hearsay rule.

Plaintiff also argues that this document was admissible under the “collateral writing exception.” He cites us to Associates Capital Corporation v. Bank of Huntsville, 49 Ala.App. 523, 274 So.2d 80 (1973), for the principle that if the original writing is incidental and collateral to the main or a main issue in the case, then proof may be made of its contents without producing it or showing . an excuse for non-production. However much that aspect of the parol evidence rule may relate to a proper case, it has no applicability here. The year model of the machine in question was a material issue, not collateral, and plaintiff’s reliance upon the factory’s written information which he received by mail made his testimony on that subject hearsay, in no way satisfied by introducing a copy of the shipping record.

Finally, plaintiff maintains that defendant waived any objections to this evidence by later cross-examining plaintiff on the same subject, as follows:

“Q. Did they tell you what year model it was?
“A. Yeah. They said it was a ’64.
“Q. But it was made in ’63?
“A. Yeah.”

A party’s cross-examination of a witness, however, about the subject matter of illegal testimony given by that witness on a direct examination, which was received over the party’s objection, is not a waiver of the objection. Scarborough v. Blackman, 108 Ala. 656, 18 So. 735 (1895); DeShazo v. Miller, 346 So.2d 423 (Ala.1977); Gamble, McElroy’s Alabama Evidence § 426.01(20) (3d ed. 1977).

Because of the error discussed above, it is necessary to reverse the judgment of the court below and remand this case for a new trial. For that reason, it is unnecessary to discuss other issues raised by defendant.

REVERSED AND REMANDED.

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


text:
    Bobby D. ELKINS, Gail Griffis, and Morton Goldfarb, M.D. v. BLUE CROSS AND BLUE SHIELD OF ALABAMA.
    82-645.
    Supreme Court of Alabama.
    Nov. 4, 1983.
    Charles M. Crook of Balch, Bingham, Baker, Ward, Smith, Bowman & Thagard, Montgomery, Clifford Fulford of Fulford, Pope, Natter, Donovan & Mullins, Birmingham, for appellants.
    William G. Somerville and Lawrence B. Clark of Lange, Simpson, Robinson & Som-erville, Birmingham, and Robert W. Bradford, Jr. of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee.
   SHORES, Justice.

Plaintiffs, who are Blue Cross and Blue Shield of Alabama (Blue Cross) policyholders, appeal from a summary judgment entered against them in this action to recover interest on claims paid by Blue Cross under medical insurance policies held by the plaintiffs. The issue, which was before the trial court and is now before us, is this: Is Blue Cross, which issues health insurance policies which are silent as to when claims for benefits are due to be paid, required to pay interest at the legal rate on the claims, from the date they are filed until the date the claims are paid? We affirm the trial court, which answered this question in the negative.

Section 27-1-17 of the Code of Alabama 1975 (Supp.1982) now provides in part:

“(a) All persons, firms, corporations or associations issuing health and accident insurance policies within this state shall consider claims made thereunder and, if found to be valid and proper, shall pay such claims within 45 days after the receipt of proof of loss under such policies. Benefits due under the policies and claims are to be considered overdue if not paid within 45 days after the insurer receives reasonable proof of the fact and amount of loss sustained....
“(b) If the claim is not denied for valid and proper reasons by the end of said 45 day period, the insurer must pay the insured one and one-half percent per month on the amount of said claim until it is finally settled or adjudicated.”

This act, which decides the issue for the future, is applicable only to claims filed on or after May 5,1981, the date on which the act became effective. All of the claims under consideration here and submitted by the plaintiffs to Blue Cross were filed and paid before May 5, 1981. Therefore, the applicable Code section is § 8-8-8 (1975), which provides:

“All contracts, express or implied, for the payment of money, or other thing, or for the performance of any act or duty bear interest from the day such money, or thing, estimating it at its money value, should have been paid, or such act, estimating the compensation therefor in money, performed.”

This statute requires that interest be paid from the time the claim was due and payable under the provisions of the policy itself. Aetna Life Ins. Co. v. Wade, 210 Ala. 170, 97 So. 636 (1923). The question here is when should the claims have been paid — on the date received by the insured or after processing to determine whether they were valid under the terms of the policy. We hold that they should have been paid, as that term is used in § 8-8-8, after the expiration of a reasonable time in which to process for a determination of validity. The plaintiffs concede that the claims were paid within a reasonable time after receipt by Blue Cross. They argue, however, that Thomas v. Liberty National Life Insurance Co., 368 So.2d 254 (Ala.1979), mandates the payment of interest from the date the claim is filed. That is not the holding in Thomas. To the contrary, the Court held that under the terms of the policy the claim was payable from the date the claim was accepted by the insurer. The record in that case contains the policies, and there the insurer agreed to pay immediately upon receipt of proof of death or loss. Therefore, by the very terms of the policies themselves, the claim became due upon proof of loss, calling into operation § 8-8-8, Ala.Code 1975.

Likewise, in Jones v. Southern United Life Ins. Co., 392 So.2d 822 (Ala.1981), the policy provided for “a cash benefit of $275.00 payable upon receipt of proof of death.” There, as in Thomas, the Court held that, there being no issue as to when the claims were due, § 8-8-8, Code, required the payment of interest from the due date.

We have found no Alabama case, nor have we been cited to one, which requires a company to pay interest on a claim before its validity is determined, unless it contracts to do so. Where, as here, the contract is silent in that regard, the law allows a reasonable time to determine whether the claimant is entitled to the money. Interest is payable only when one is using another’s money. It cannot be said that Blue Cross is using the claimant’s funds until such time as it is established that the claimant is entitled to those funds. A reasonable time must be allowed to make that determination, in the absence of an agreement to the contrary.

The holding of the trial court is consistent with the law in this state, and it must, therefore, be affirmed.

AFFIRMED.

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