author: FAULKNER, Justice. SHORES, Justice

text:
    Buehl B. BUCHANAN v. MERGER ENTERPRISES, INC.
    83-370.
    Supreme Court of Alabama.
    Aug. 24, 1984.
    Rehearing Denied Jan. 11, 1985.

      R. Bruce Hall of Conaway, Hall, Carter & Bledsoe, Dothan, for appellant.
    Jack R. Thompson, Jr. of Kracke, Woodward & Thompson and Thomas E. Ellis of Kracke, Thompson & Ellis, Birmingham, for appellee.
   FAULKNER, Justice.

The plaintiff, Buehl B. Buchanan, appeals from a summary judgment in favor of Merger Enterprises, Inc., doing business as the Checkers Lounge. The issue in this case is whether the personal representative of an individual killed by a drunken driver should be allowed to bring an action against a lounge which continued to serve alcohol to a patron after he had become visibly intoxicated, when the lounge’s employees knew or should have known that the patron would later attempt to drive an automobile.

The plaintiff alleges that at or about 5:30 in the morning of July 29, 1981, David Slaughter entered the Checkers Lounge in Dothan after an all-night drive from Florida. He commenced drinking and continued imbibing until around noon, when he left with a waitress. Thirty minutes later he returned and remained at the lounge until around 5:00 P.M. Although Slaughter became visibly intoxicated while in the lounge, the lounge’s employees continued to serve him alcoholic beverages up until the time he left. About fifteen minutes after leaving the lounge, the automobile which Slaughter was driving left the road and careened through the yard of the plaintiff’s mother, killing her as she worked in her garden.

Alabama’s dram shop statute creates a civil action against a purveyor of alcoholic beverages in favor of any person, or the personal representative of any person, injured or killed by an intoxicated person when the beverages causing the intoxication were dispensed “contrary to the provisions of law.” Section 6-5-71, Code of Alabama 1975. Prior to 1980, Title 28, Chapter 3, of the Code, §§ 28-3-1 et seq., governed the sale of alcoholie beverages in “wet” counties. That chapter contained an article, Article 9, enumerating miscellaneous offenses connected with the sale and distribution of alcohol. Sales in violation of that article were considered to be sales contrary to law within the meaning of the dram shop statute. Section 28-3-260(2) provided that it was unlawful for a liquor licensee “to sell, furnish or give any beverages to any person visibly intoxicated or to any insane person or to any minor or to habitual drunkards or to persons of known intemperate habits.” Thus, where a tavern served liquor to a visibly intoxicated patron in contravention of § 28-3-260, a person injured by the patron had a cause of action against the tavern under the dram shop statute.

In 1980 the legislature enacted a new Alcoholic Beverage Licensing Code, Act No. 80-529. The new licensing code replaced Article 9 of old Title 28. The new code did not, however, have any provisions similar to § 28-3-260 enumerating offenses associated with the sale of alcohol. The defendant contends that the framers of the new licensing code sought to bestow greater authority on the Alcoholic Beverage Control Board to promulgate rules governing the sale of alcohol. Section 28-3-49, Code of Alabama 1975, gives the Board the power to promulgate rules and regulations having the full force and effect of law regarding the sale of alcoholic beverages. The A.B.C. Board did promulgate regulations prohibiting the sale of alcohol to persons “acting in a manner as to appear to be intoxicated.” Regulation 20-X-6-.02. That regulation was not promulgated until September of 1982, which, of course, was after Mrs. Buchanan’s death.

The defendant argues that because Mrs. Buchanan’s death occurred subsequent to the repeal of § 28-3-260 and prior to the promulgation of § 20-X-6-.02, there was no sale contrary to law and, hence, that no cause of action arose under the dram shop statute. The defendant argues that the legislature is the proper body of government to determine the public policy of this state regarding the scope of liquor vendor liability laws and that it has limited the scope of those liquor liability laws in such a way that there is no cause of action against the defendant under these facts.

We agree with the defendant to the extent that it appears that on the date in question there was no statute in effect making it illegal to sell alcohol to visibly intoxicated persons. We disagree, however, with the defendant’s characterization of this plaintiff as a single “unfortunate” individual seeking to carve out a special exception to the usual rules of liquor vendor liability in Alabama. From 1909, when the dram shop statute was first passed, until the present time, with the sole exception of the short hiatus during which the events complained of in this case took place, Alabama has recognized a cause of action under the dram shop statute for injury or death caused by an intoxicated individual where the intoxicated person was sold alcohol in the manner alleged in this case. It is not the plaintiff who seeks to carve out a special exception. It is the defendant, who has been accused of culpable behavior, who seeks to escape liability solely because of the fortuitous timing of the events.

Moreover, it appears to us that the emasculation of the dram shop statute by the passage of the new alcohol licensing act was the result of legislative oversight, not legislative wisdom. The legislature may have intended for the A.B.C. Board to promulgate regulations governing the sale of alcohol. It does not follow from that premise, however, that it intended to legalize the sale of alcohol to visibly intoxicated persons, to minors, and to insane persons. To the contrary, it appears to us that the legislature was very concerned with the problem of drunken driving. In the same term during which the new alcohol licensing act was passed, the legislature passed a new drunk driving law, Act. No. 80-434, granting trial courts new powers to suspend driving licenses of those convicted of drunk driving upon their first conviction and providing for increased penalties and a mandatory suspension of driving privileges for second and subsequent convictions. Compare § 32-5A-191 to § 32-5-170, Code of Alabama 1975. The stated purpose of the new drunk driving laws was to “do a better job of helping to identify the problem drinking driver and keep him off the highways.” Commentary to § 32-5A-191. Unless the legislature was afflicted with a collective split personality, it is difficult to believe that it intended to give taverns carte blanche authority to continue serving alcohol to visibly intoxicated patrons, given its concern for drunken driving. If it had intended to do away with the dram shop statute the legislature would have repealed the statute itself, not just its teeth.

The complexity and interrelationship of statutory laws are such that the repeal of one statute can have unexpected consequences, as it did here with the dram shop statute. .A similar problem was created with the passage of the new drunk driving statute in 1980. Driving under the influence of alcohol is a misdemeanor under Alabama law. See § 13A-l-2(3). The Alabama statute authorizing warrantless arrests allows police officers to make war-rantless arrests for the violation of a misdemeanor when the offense is committed within the officer’s presence. Section 15-10-3(1), Code of Alabama. When an officer has observed a drunken driver violating traffic laws the officer can arrest the driver, since the offense was committed in the officer’s presence. If, however, the drunk driver was involved in a traffic accident and the officer arrived at the scene of the accident after it had occurred, the offense would not have been committed in the officer’s presence and, therefore, the officer would not be authorized under § 15-10-3 to make an arrest. Obtaining a warrant is impractical, since the length of time it takes to do so would usually be such that, by the time the arrest is made the blood alcohol level of the suspect would have diminished and the results of the post-arrest tests administered to determine the driver’s blood alcohol content would not reflect the driver’s state of intoxication at the time of the accident. Therefore, the legislature passed an act empowering police officers to make warrantless arrests at the scene of an accident for the violation of § 32-5-170, the old drunk driving law. Acts 1971, No. 1942, codified at § 32-5-171. When the legislature passed the new drunk driving law in 1980 it did not amend § 32-5-171 to reflect passage of the new act. Since § 32-5-170 had been repealed, the new drunk driving law in effect rendered useless the statute empowering police to arrest drunk drivers who had been involved in an accident. An argument could be made to the effect that, by passage of the new drunk driving law, the legislature “intended” to strip police of the right to arrest drunk drivers who were involved in traffic accidents. As a practical matter, such an argument simply is not plausible. Just as the emasculation of the dram shop statute was inadvertent, so was the emasculation of the statute allowing police to arrest drunk drivers who have been involved in accidents. The legislature subsequently amended § 32-5-171 to correct the mistake, see Acts 1983, 2d Ex.Sess., No. 83-201, just as the A.B.C. Board resurrected the dram shop statute by passage of a new regulation prohibiting sales of liquor to visibly intoxicated persons.

Thus, we are faced with an anomalous situation. It is the legislatively declared policy of this state to discourage drunken driving. Even the defendant concedes in its brief that there is a “universal concern” for the problem. Yet, during the same term that the legislature passed new, more stringent, drunk driving laws, it inadvertently removed the statutory prohibition against selling further intoxicants to visibly intoxicated tavern patrons, thus destroying the dram shop statute and encouraging drunk driving. We cannot, of course, rewrite the dram shop statute. It exists, regardless of intent, as written. It is proper, however, for us to consider allowing the plaintiff to proceed under a negligence theory. Tort law issues are, under certain circumstances, proper subjects for judicial reform. Lloyd v. Service Corp. of Alabama, 453 So.2d 735 (Ala. 1984). We find precedent for the proposition that legislatively created principles of dram shop liability, not fully implemented by the acts themselves, can be effectuated by a common law negligence action in the case of Waynick v. Chicago’s Last Department Store, 269 F.2d 322 (7th Cir.1959). In that case a visibly intoxicated driver purchased alcohol from the defendant in Illinois and subsequently was involved in an automobile accident with the plaintiff in Michigan. Both states had dram shop statutes creating causes of action against a seller of alcohol to a visibly intoxicated person. The Michigan act, however, did not apply to sales outside Michigan and the Illinois act did not apply where the injuries were incurred outside Illinois. The court rejected the same argument made by the defendant here, viz., that the dram shop statutes “preempted the field.” That court concluded that the acts avoided, rather than preempted the field, and that a common law negligence action should be allowed under those facts. 269 F.2d at 324-26.

At common law no action would lie for negligently dispensing alcohol. The common law rule was enunciated in Alabama in King v. Henkie, 80 Ala. 505 (1876). In that case the deceased, who was in a state of intoxication, entered a saloon, where he consumed large quantities of alcohol and then died on the premises. An action was brought, not by an innocent third-party, but by the representative of the person who had been served the alcohol. This court ruled that the action would be barred by the contributory negligence of the deceased. It also reiterated the common law rule that no cause of action existed for the negligent dispensing of alcohol. The court reasoned that “[t]he death of the deceased was not ‘caused’ so much by the wrongful act of the defendants in selling him the whiskey, as by his own act in drinking it after being sold to him.” 80 Ala. at 510. Although King did not involve an action brought by a third-party, this Court relied on it in a case brought by a third-party against the employer of a drunken driver who injured the plaintiff in a traffic accident. DeLoach v. Mayer Electric Supply Co., 378 So.2d 733 (Ala.1979). Mayer Electric hosted an “open house and ‘New Products Show’ ” at which it served food and drinks. The employee/driver in that case, along with the rest of Mayer Electric’s employees, was invited to attend the show, though he and the other employees “clocked out” before attending. The plaintiff’s complaint in that case was held not to state a cause of action against Mayer Electric under the dram shop statute, because that defendant had not sold the alcohol to the employee/driver. This Court refused to recognize a common law negligence action against Mayer Electric under those facts.

The threshold issue in determining whether a common law negligence action will lie is to determine whether the defendant owed a duty to a class of persons which included the deceased. The duty issue is essentially a public policy question, i.e., whether the law should impose a requirement on the defendant that it do or refrain from doing some act for the safety and well-being of the plaintiff. See Prosser, Handbook of The Law of Torts § 206 (4th ed. 1971). During King’s day, when most people walked and some rode in horse-drawn carriages, no unreasonable risk to third persons was created by selling alcohol to a visibly intoxicated person. Today, lounge patrons no longer typically walk or rely on horses to travel to and from taverns. They almost always travel by motor vehicle. This reality of modern life is evidenced by the fact that drinking establishments, unless they are located in buildings constructed prior to the proliferation of the automobile, typically provide parking lots nearby for their patrons. Today, motor vehicle crashes are the single greatest health hazard to people under the age of 45. Over 50% of all highway fatalities result from driving under the influence of alcohol. During the past ten years over 250,000 people have died in the United States in alcohol-related motor vehicle accidents. Interim Report to the Nation From The Presidential Commission on Drunk Driving, p. i and p. 2 (Dec. 13, 1982).

The law has also undergone significant changes since King was rendered. The law of negligence, which was scarcely recognized as a separate tort in its own right before the nineteenth century, was in its infancy when King was decided. Since that time, ideas regarding the liability of vendors for injuries resulting from the sales of dangerous products have undergone substantial revision. At the time King was decided, the seller of a product was generally not liable to third persons for negligence with regard to the sale of products, due to the privity requirement. See, e.g., Sterchi Bros. Stores v. Castleberry, 236 Ala. 349, 182 So. 474-76 (1938). Today, there is no requirement of privity between the seller and the injured party in order for an action to lie. See, e.g., Harris v. Board of Water and Sewer Commissioners of the City of Mobile, 294 Ala. 606, 320 So.2d 624 (1975).

The ultimate test of the existence of a duty to use due care is found in the foreseeability that harm may result if care is not exercised. Havard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 307, 302 So.2d 228, 232 (1974). Common experience dictates that when a person is imbibing alcoholic beverages that person reaches a level of toxicity after which continued imbibing will render him unable to operate an automobile safely. The plaintiff alleges that the defendant served Slaughter alcoholic beverages continuously from 5:30 in the morning until 5:00 that evening, except for thirty minutes in the middle of the day. It is reasonable to conclude that at some point during that day the defendant’s employees should have foreseen that Slaughter was becoming so intoxicated that to continue serving him alcohol would create an unreasonable risk of harm to third persons.

The defendant’s negligence need not be the sole cause of an injury in order for an action against the defendant to lie. It is sufficient that the negligence concurred with other causes to produce the injury. Lawson v. General Telephone Co. of Alabama, 289 Ala. 283, 290, 267 So.2d 132, 138 (1972). In situations such as the one at bar, where liquor is sold under a license for on-premises consumption to one who the seller knows or should know will later attempt to drive, if courts cling steadfastly to the myth that the continued selling of alcohol to a visibly intoxicated patron cannot be the proximate cause of a third person’s injuries, they are wearing blinders when it comes to observing the ordinary course of events. McClellan v. Tottenhoff 666 P.2d 408, 415 (Wyo.1983).

“The modern view, and probably the majority view, in cases involving a liquor vendor’s liability to third persons is that the furnishing of intoxicants may be the proximate cause of the injuries.”

Vance v. United States, 355 F.Supp. 756, 761 (D .Alaska 1973).

As numerous courts have pointed out, there is an obvious analogy between the negligent sale of alcohol to a visibly intoxicated person and the tort of negligent en-trustment. See, e.g., Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200, 209 (1983); Hutchens v. Hankins, 63 N.C.App. 1, 303 S.E.2d 584, 597 (1983); Rappaport v. Nichols, 31 N.J. 188,156 A.2d 1, 7 (1959); Elder v. Fisher, 247 Ind. 598, 217 N.E.2d 847, 852 (1966); Mitchell v. Ketner, 54 Tenn.App. 656, 393 S.W.2d 755, 759 (1964). If the defendant had entrusted Slaughter with an automobile when he was visibly intoxicated, the plaintiff would have had a cause of action against the defendant. Redmond v. Self, 265 Ala. 155, 90 So.2d 238 (1956); Restatement of Torts, (Second) § 390 (specifically adopted as declarative of the law in Alabama in Keller v. Kiedinger, 389 So.2d 129 (Ala.1980)); see Comment, Negligent Entrustment in Alabama, 23 Ala.L. Rev. 733 (1971). The facts of this case merely represent the converse situation. Justice Musmanno likened the sale of alcohol to an intoxicated individual to the sale of a firearm to a known incompetent:

“The person who would put into the hands of an obviously demented individual a firearm with which he shot an innocent third person would be amenable in damages to that third person for unlawful negligence. An intoxicated person behind the wheel of an automobile can be as dangerous as an insane person with a firearm. He is as much a hazard to the safety of the community as a stick of dynamite that must be de-fused in order to be rendered harmless. To serve an intoxicated person more liquor is to light the fuse.”

Jardine v. Upper Darby Lodge, 413 Pa. 626, 198 A.2d 550, 553 (1964).

The recognition of a cause of action for the negligent sale of alcohol by a licensee for on-premises consumption to one who is visibly intoxicated will discourage drunk driving by discouraging the sale of alcohol to patrons who lack the self control to cease drinking when they have “had enough.” The Presidential Commission on Drunk Driving concluded that the majority of alcohol-related deaths are caused by “heavy (problem) drinkers” who regularly abuse alcohol. Interim Report, supra, at page 2. Although some of these problem drinkers are arrested before they cause accidents, the Commission estimates that only one in 500 to one in 2000 drivers on the road who are legally intoxicated are arrested for driving under the influence. Id. Common experience tells us that after a “problem drinker” begins to imbibe, his self-restraint is often insufficient to cause him to stop before he becomes unable to drive safely. To put it bluntly, if we must depend on the David Slaughters of this world to exercise the self-restraint to stay off the road after they have had “a few too many,” our society will never be able to rid itself of the pernicious menace of drunken drivers. In a situation like the one at bar, the first step toward detoxicating someone who has lost control over his reflexes and judgment, and has lost his sense of responsibility toward others because of alcohol, is to stop selling him liquor. The question whether the employees of the Checkers Lounge acted unreasonably in failing to stop pouring Slaughter drinks at some point during the day is one which should be presented to a jury.

We recognize that the rule that there could be no common law cause of action for negligently serving alcohol, which was espoused in King, was reaffirmed in De-Loach, supra. DeLoach is, however, distinguishable from the facts presented here. It did not involve a licensed vendor. Had these facts been alleged in DeLoach, a cause of action would have been stated under the dram shop statute. Furthermore, there has been an increase in the public’s awareness of the drunken driving problem since DeLoach was decided. The change in public attitudes has been reflected in legislative efforts to reduce the incidence of drunken driving in this state.

The rule espoused in King was judicially created. When a judicially created rule becomes outmoded or unjust in its application, it is often appropriate for the judiciary to modify it, Lloyd v. Service Corp. of Alabama, supra.

“Inherent in the common law is a dynamic principle which allows it to grow and to tailor itself to meet changing needs within the doctrine of stare decisis, which, if correctly understood, was not static and did not forever prevent the courts from reversing themselves or from applying principles of common law to new situations as the need arose. If this were not so, we must succumb to a rule that a judge should let others “ ‘long dead and unaware of the problems of the age in which he lives, do his thinking for him.’ ”

Lewis v. Wolf, 122 Ariz. 567 at 568, 596 P.2d 705, 706 (1979) (quoting Mr. Justice Douglas, Stare Decisis, 49 Colum.L.Rev. 735, 736 (1949)).

Numerous other states have recently considered the question presented here and have recognized common law negligence actions under similar facts. See, e.g., Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983); Kelly v. Gwinnell, 96 N.J. 538, 476 A.2d 1219 (1984); Hutchens v. Hankins, 63 N.C.App. 1, 303 S.E.2d 584 (1983); Sorensen v. Jarvis, 119 Wis.2d 627, 350 N.W.2d 108 (1984); McClellan v. Totten-hoff 666 P.2d 408 (Wyo.1983).

Finally, the defendant argues that the recognition of a common law action for negligently dispensing alcohol would allow actions to be brought against social hosts. That result does not necessarily follow. Most of the states which have recognized a common law action for negligently dispensing alcohol have restricted those actions to instances of sales by vendors. Only New Jersey, in Kelly v. Gwinnell, supra, has extended liability to social hosts. There is an arguable distinction between licensed

vendors and social hosts based on the governmental interest which supports the statutory requirement that commercial vendors of alcohol be licensed. An analogy to that position may be found in products liability law. The rule stated in § 402A of the Restatement of Torts (Second) does not apply for instance to a “housewife who, on one occasion, sells her neighbor a jar of jam or a pound of sugar.” Comment f to § 402A. We hasten to point out, however, that the question of a social host’s liability is not before us and we specifically decline to decide that issue. We cannot allow the possibility that this court might, some time in the future, recognize a negligence action involving a social host’s dispensing of alcohol, to prevent us from allowing this plaintiff to have his day in court. The gravity of the injuries and the interests of society outweigh the potential for harm caused by the possibility that we might affect someone’s cocktail party customs.

The decision of the trial court is hereby reversed and the case is remanded for further proceedings.

REVERSED AND REMANDED.

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

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

SHORES, Justice

(dissenting):

I dissent.

Prior to September 30, 1980, § 28-3-260(2) (Alcohol Beverage Control Code), Ala.Code 1975, made it unlawful for a liquor licensee to dispense alcohol to a person “visibly intoxicated.” In September 1980, the legislature repealed this statute and substituted for it a new Alcohol Beverage Licensing Code, in particular § 28-3A-26. The new Code excluded any reference to sales to visibly intoxicated persons, and left it to the ABC Board to formulate regulations governing the subject. In September of 1982, the ABC Board promulgated Regulation 20-X-6-.02, which makes it unlawful for any licensee to serve a person alcoholic beverages if the person is “acting in such a manner as to appear to be intoxicated.”

The unfortunate incident which is the basis of this suit occurred in July of 1981, when there existed neither a statute nor a regulation making it unlawful to sell alcohol to a person either “visibly intoxicated” or “acting in such a manner as to appear to be intoxicated.”

The majority overrules precedent established in 1876 in King v. Henkie, 80 Ala. 505 (1876), and reaffirmed in 1979 in De-Loach v. Mayer Electric Supply Co., 378 So.2d 733 (Ala.1979), and establishes a cause of action which was not recognized at common law in an area traditionally reserved to the legislature. This newly created cause of action apparently will be available in addition to the cause of action based upon violation of the rules promulgated by the ABC Board.

Alabama, like most states, generally has recognized that the sale and dispensing of alcoholic beverages is governed by the legislature, and that body is in a much better position than this Court to determine what the public policy should be as to the scope of liability in that activity. We agree with the Supreme Court of Nebraska, which said in Holmes v. Circo, 196 Neb. 496, 504-505, 244 N.W.2d 65, 70 (1976):

“We are mindful of the misery caused by drunken drivers and the losses sustained by both individuals and society at the hands of drunken drivers, but the task of limiting and defining a new cause of action which could grow from a fact nucleus formed from any combination of numerous permutations of the fact situation before us is properly in the realm of the legislature.
"... The legislature may hold hearings, debate the relevant policy considerations, weigh the testimony, and, in the event it determines a change in the law is necessary or desirable, it can then draft statutes which would most adequately meet the needs of the public in general, while balancing the interest of specific sectors.”

It is the legislature which can most appropriately review the problems and difficulties which the creation of a common law action would produce. Some of the problems which the courts have recognized are best left to legislative consideration are (1) the difficulty of distinguishing between a commercial vendor and a social host; (2) the difficulty of recognizing intoxication; (3) the difficulty of predicting the conduct of an intoxicated person; (4) the difficulty in imposing a duty of inquiry on the seller or host; (5) the difficulty in apportioning liability among various sellers or hosts; (6) the appropriate standard of due care; and (7) the distinction between negligent and intentional acts. Holmes v. Circo, supra.

Because I believe the regulation of the sale of alcohol, including liability to third persons when it is sold to a person allegedly intoxicated, is a matter peculiarly within the legislature’s domain, I must dissent.

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


source: Caselaw Access Project

author: JONES, Justice. TORBERT, Chief Justice

license: Public Domain

text:
    Shelby Jean PARR, Individually, and as Executrix of the estate of Charles Moody Kelley, deceased v. Frances GODWIN and Luverne Bank & Trust Company.
    83-871.
    Supreme Court of Alabama.
    Nov. 16, 1984.
    Rehearing Denied Jan. 11, 1985.

      Charles J. Kettler, Jr., Luverne, for appellant.
    John A. Nichols of Lightfoot & Nichols, Luverne, for appellees.
   JONES, Justice.

This action by Shelby Jean Parr against Frances Godwin and the Luverne Bank & Trust Company seeks to determine the ownership of funds previously located in a checking account in the Bank. The account was entitled “C.M. Kelley or Frances God-win.” Claimants to the fund are Parr, individually and as executrix of the estate of C.M. Kelley, deceased, and Godwin, as the alleged survivor of a joint account with right of survivorship. The trial court ordered that the proceeds be paid to Godwin. Parr appeals. We affirm.

FACTS

On March 23, 1983, Charles Moody Kelley decided to change an existing individual checking account at the Bank into a joint checking account by adding the name of Frances Godwin to a signature card. The front of the form reflected the offering of eleven different kinds of accounts. The terms and conditions of each kind of account were found on the back side of the agreement.

Designation of the proper kind of account was accomplished by placing an “X” in a box to the left of the name of the kind of account requested. No such designation of the kind of account was made on the agreement, which is the basis of this lawsuit. Evidence during trial tended to show absence of designation as a mistake on the part of the Bank’s personnel.

Testimony of Mildred Martin, a teller at the Bank, reflects that in March 1983 the decedent went to the Bank and requested that a second party’s name be placed on his checking account. She stated that the Bank’s tellers do not ordinarily open new accounts. She explained to the decedent that by having an “or” account, the money in the account would go to the second party named if anything should happen to him. She also told him that the second party could come in the Bank and make withdrawals on the account just as he could. The decedent indicated that this was what he wanted. He told the teller that he had left other money to relatives and that he wanted the person whose name appeared with his on the signature card to have the money in the account. The teller typed the agreement so that the names of the decedent and Frances Godwin appeared on its face. Thereafter, the decedent returned the agreement to the Bank, properly signed by both parties.

The Bank’s teller testified that the signature card form used for the account was new to the Bank when the account was established. She stated that decedent’s account was the first occasion on which she used the new form. She admitted her mistake in failing to mark the kind of account on the card, and stated that, but for this oversight, she would have marked the account “joint with survivorship,” based on the conversation she had with the decedent.

The assistant bookkeeper at the Bank testified that prior to March 1, 1983 (the time the new signature card forms went into effect), any time more than one name appeared on a signature card, the account was one held jointly with right of survivor-ship. She further stated that she knew of no joint accounts without survivorship rights held by the Bank.

The bookkeeper testified that the Bank attached no significance to the fact that Godwin’s name did not appear on the checks or on the bank statements. She' related that such was common practice.

A third witness, Mr. Goray, testified that he and the decedent had worked together closely for fifteen to seventeen years and that he had known the decedent since 1961. Goray said that he and the decedent were very close friends. He further stated that the decedent considered his relationship with* Godwin to be very close and that, at one time, probably in 1982, Godwin and the decedent had been engaged to be married. The record reflects that the decedent told Goray, “Lamar, I will never love any woman but that one around there,” and pointed to where Mrs. Godwin worked. Goray testified that the decedent told him that he had put Godwin’s name on a checking account. Goray understood that the reason for the decedent’s establishment of the account was his gratitude for Godwin’s care of him during a previous illness.

C.M. Kelley died September 7 or 8, 1983. On or about September 16, 1983, Godwin withdrew all funds from the checking account. Appellant Shelby Jean Parr was later appointed executrix of Kelley’s estate by the Probate Court of Crenshaw County.

Parr, the principal beneficiary under decedent’s will, filed a complaint in the Circuit Court of Crenshaw County, Alabama, claiming the sum of $14,370 for money had and received (Count I); for conversion (Count II), as to Defendant Prances God-win; for money had and received (Count III); and for breach of checking account agreement (Count IV), as to Defendant Bank. The complaint alleged that the decedent had a checking account deposit at the Bank in his name without survivorship; that such funds were owned by him; that Godwin withdrew the entire balance in the account on September 16, 1983, when both Defendants had notice of Kelley’s death prior thereto; and that the Bank permitted the withdrawal in breach of its deposit agreement.

The trial court heard the case without a jury and entered judgment for the Defendants.

DECISION

As to Defendant Bank:

The liability of Defendant Bank is governed by Code 1975, § 5-5A-41. The statute is drafted in terms which exempt the Bank from liability for its payment of a joint account to the survivor:

“[Irrespective of whether or not:
(1) the form of the deposit or deposit contract contains any provision of sur-vivorship .... ”

We interpret this provision to mean that the Bank is not liable for its payment of the entire amount in the account to Godwin on September 16, 1981.

As to' Defendant Godwin:

Although § 5-5A-41 exempts the Bank from liability, it does not empower the bank to determine ownership of a joint account in its depository. Jones v. Jones, 423 So.2d 205 (Ala.1982). Title is determined in accordance with the intentions of the parties “stated in the instrument creating such tenancy,” pursuant to Code 1975, § 35-4-7.

The only word used in the checking account agreement in the instant case from which one might infer the creation of a joint tenancy with right of survivorship is “or.” Therefore, at first glimpse, it appears that this Court’s holding in Farmer v. Farmer, 455 So.2d 1 (Ala.1984), should be controlling; however, that case may be distinguished on its facts.

The primary issue in Farmer was the determination of the rightful payees of a promissory note. Appellant argued that, because the note was payable on its face to “Clyde E. Farmer, or Grace Farmer, or Charles Edgar Farmer” (emphasis added), there was evidence of intent that the note be held in joint tenancy with right of sur-vivorship. This Court refused to accept the argument and quoted its holding in Ex parte Lovett, 450 So.2d 116, 117 (Ala.1984):

“As between the claimants to the proceeds, here, the administratrix of the estate of Mrs. Spruell, Mrs. Uptain on the one hand, and Mrs. Lovett on the other, § 35-4-7, Code [1975], is the controlling statute with regard to Mrs. Lovett’s claim to the proceeds as a joint tenant with right of survivorship. Title to personalty by that act is determined in accordance with the intention of the parties ‘stated in the instrument creating such tenancy.’ Nothing in the evidence suggests that a joint tenancy with right of survivorship was intended. That being so, Mrs. Lovett is not entitled to the entire fund, because the certificate of deposit did not create a survivorship estate in her.”

Both Farmer and Lovett can be distinguished from this case, because in each of those cases the instrument at issue was complete on its face. Therefore, there existed no reason for the admission of parol evidence. To the contrary, here, we have an instrument that is not complete on its face.

No one designated the proper kind of account on the front of the instrument. Thus, the instrument is incomplete and therefore ambiguous. We have two alternatives in this case. We may discard the contract as void for its incompleteness, or we may accept the contract as incomplete and allow parol evidence to clarify the ambiguity. Because of the obvious intent on the part of the decedent to execute the contract as a completed document, we hold that the ambiguity created by the incompleteness is subject to clarification and being made certain by parol evidence.

In our consideration of the issue of admission of parol evidence to explain the incomplete instrument, the case of Port City Construction Co. v. Henderson, 266 So.2d 896, 48 Ala.App. 639 (1972), is persuasive. There, the Court of Civil Appeals found no error in the trial court’s allowing parol evidence of consistent additional terms and of facts and circumstances surrounding the formation of a contract, where the contract was ambiguous, lacked clarity, and did not include all the terms necessary for construction.

The fundamental determination in the legal construction of contracts is the real intention of the parties. 17 C.J.S. Contracts § 49 (1963). The primary rule of construction is that the court must, if possible, ascertain and give effect to the common intention of the parties, so far as that may be done without contravention of legal principles, statutes, or public policy. C.J.S., Id., at 48.

In Lovett, supra, the evidence reflected a certificate of deposit carried on the bank’s records in the names of Cora Spruell or Betty Lovett. This Court found nothing in the evidence to suggest that a joint tenancy with right of survivorship was intended. Contrary to the evidence in Lovett, here, we have evidence of an inter vivos gift. See, for example, Dempsey v. First National Bank of Scranton, 359 Pa. 177, 58 A.2d 14 (1948), involving a joint account where the Court held that the proof of the decedent’s signature and the offering of the signature card into evidence was prima facie evidence of a gift. In the case at bar, the evidence suggests that decedent’s executed signature card, when clarified by parol evidence, expresses an intent to create a joint tenancy with right of survivorship.

CONCLUSION

Luverne Bank & Trust Company is not liable to the plaintiff in this action, because of the operative effect of Code 1975, § 5-5A-41. As to the liability of Godwin, we look first to the instrument which established the joint account entitled “C.M. Kelley or Frances Godwin.” Because the signature card is incomplete, parol evidence has been allowed to explain the intent of the party in creating the instrument. Evidence reflects a mistake on the part of Bank personnel in failure to mark the appropriate box on the card indicating an account held jointly with right of survivor-ship.

Central to our holding is the fact that the signature card was not intended to have any operative effect apart from the marking of an appropriate box indicating the nature of the account. It is this incompleteness of the writing that creates the ambiguity, to which the parol evidence speaks, that distinguishes this case from Farmer and Lovett. Because of the parol evidence, and because this is purely a factual issue, we cannot say that the trial court erred in holding that all the funds in the joint checking account belong to Frances Godwin.

The decision of the Circuit Court of Cren-shaw County is affirmed.

AFFIRMED.

ALMON, EMBRY, BEATTY and ADAMS, JJ., concur.

TORBERT, C.J., and MADDOX, FAULKNER and SHORES, JJ., dissent.

TORBERT, Chief Justice

(dissenting).

From 1943 to 1980 the banking statutes of the Alabama Code controlled the determination of ownership of funds in a joint bank account. Code 1940, Title 5, § 128(2a) (Recomp.1958), which was recodified by Code 1975, § 5-1-25, provided in pertinent part:

“When a deposit shall hereafter be made in any bank doing business in this state in the names of two persons payable to either of such persons, or payable to the survivor of them, the said deposit shall upon the death of either of said persons become the property of and be paid in accordance with its terms to the survivor, irrespective of whether or not the funds deposited were the property of only one of said persons, and irrespective of whether or not at the time of the making of such deposit there was any intention on the part of the person making such deposit to vest the other with a present interest therein, and irrespective of whether or not only one of said persons during their joint lives had the right to withdraw such deposit, and irrespective of whether or not there was any delivery of any bank book, account book, savings account book, or certificate of deposit by the person making such deposit to the other of such persons.”

It has been noted that this language provided that a deposit made in the name of two persons payable to either of such persons or payable to the survivor of them would become the property of the survivor and be paid to the survivor in the event of the death of either. Macon v. First National Bank of Ashford, 378 So.2d 1128 (Ala.Civ.App.1979).

This Court in Harris v. Dial, 398 So.2d 679 (Ala.1981), had occasion to consider the applicability of § 5-1-25 to a joint checking account with a right of survivorship agreement. Our decision in Harris stated that § 5-1-25 “has been considered ... to give the survivor of such an account the right to the proceeds remaining at the death of the other, without any duty resting upon the survivor to show a donative intent upon the party furnishing the funds.” 398 So.2d at 681.

A similar result was obtained in Chandler v. Farmers and Merchants Bank, 355 So.2d 726 (Ala.Civ.App.1978). However, Chandler concerned the applicability of § 128(2a) and involved the determination of ownership of funds in a joint checking account and a joint savings account, neither of which contained a provision for right of survivorship. The opinion in Chandler stated, “The law is clear ... that a survivor of a joint bank account is entitled to the proceeds of such account, without a showing of donative intent, if the account provided for a right of survivorship.” The court added, “However, the mere fact that one is a survivor of a joint bank account, without more, does not unequivocally vest the proceeds in the survivor.” 355 So.2d at 728. Chandler went on to state that in the absence of survivorship language § 128(2a) did not preclude an investigation into the donor’s intent to determine the disposition of the proceeds in the account. The effect of § 5-1-25 and its predecessor, § 128(2a), was to create a conclusive presumption of survivorship and donative intent. Ex parte Lovett, 450 So.2d 116, 117 (Ala.1984).

Section 5-1-25 was repealed and superseded by Code 1975, § 5-5A-41 (Repl.Vol. 1981), following passage of the Alabama Banking Code. Acts of Alabama 1980, Act No. 80-658, May 28, 1980, pp. 1259-1337. Section 5-5A-41 merely exonerates a bank from liability for payment of a joint bank account. Comments to that statute clearly indicate that it does not govern the ownership of funds in a joint account but that ownership must be determined by reference to other appropriate law.

The first occasion we had to comment on the effect of § 5-5A-41 came in Jones v. Jones, 423 So.2d 205 (Ala.1982). Jones involved an interpleader action filed by a bank for determination of the proper payment of funds in a joint savings account following the death of one of the parties. Jones established the principle that following the enactment of § 5-5A-41 the ownership of funds in a joint account was controlled by principles of property law, specifically Code 1975, § 35-4-7. Our opinion stated:

“Admittedly, [§ 5-5A-41] is drafted in terms which exempt the bank from liability for its payment of a joint account to the survivor. But the statute does not empower the bank to determine ownership of a joint account in its depository. Rather, title is determined in accordance with the intentions of the parties, ‘stated in the instrument creating such tenancy,’ pursuant to § 35-4-7. When § 5-5A-41 superseded § 5-1-25 ... the survivor-ship between joint tenants provisions of § 35-4-7, which applies to personal as well as real property, remained fully operative.”

423 So.2d at 207.

Two recent decisions have followed the holding in Jones. Lovett, supra, involved property in the nature of a jointly owned certificate of deposit, and Farmer v. Farmer, 455 So.2d 1 (Ala.1984), involved a jointly owned promissory note. In both, the incidents of ownership were the same; the names of the joint owners were merely separated by the word “or” and the instrument expressed no intention of the parties to create a right of survivorship. As between those contesting title, it was held that § 35-4-7 controlled the determination of ownership of the proceeds.

Section 35-4-7 provides:

“When one joint tenant dies before the severance, his interest does not survive to the other joint tenants but descends and vests as if his interest had been severed and ascertained; provided, that in the event it is stated in the instrument creating such tenancy that such tenancy is with right of survivorship or other words used therein showing such intention, then, upon the death of one joint tenant, his interest shall pass to the surviving joint tenant or tenants according to the intent of such instrument. This shall include those instruments of conveyance in which the grantor conveys to himself and one or more other persons and in which instruments it clearly appears that the intent is to create such a survivorship between joint tenants as is herein contemplated.”

It should be clear that under § 35-4-7 a grant of personal property, as in this case, or a grant of real property to two or more persons creates in them a tenancy in common with respect to such property unless the proviso in that statute is complied with; that is, the instrument creating the estate must clearly indicate that a joint tenancy with right of survivorship was intended. It has consistently been stated that an instrument creating a joint tenancy with right of survivorship must clearly express the incident of survivorship if such was intended by the parties. Smith v. Smith, 418 So.2d 898 (Ala.1982); Durham v. Durham, 400 So.2d 751, 752 (Ala.1981); Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972).

In the instant case, the signature card listed eleven different kinds of accounts. A desired account was to be designated by placing an “X” in a box provided to the left of each account. No box was marked with an “X”. From this it cannot be said that the proviso in § 35-4-7 has been met. There is nothing in the instrument establishing the joint checking account to indicate that a joint tenancy with right of sur-vivorship was intended. The majority would permit the admission of parol evidence in order to clarify the uncertainty arising from the failure to designate a specific account on the signature card. I cannot agree. The majority has failed to make clear that the rule adopted today is applicable only to contracts, as in the instant case, and not to deeds. The resulting effect is to admit parol evidence to determine whether an estate created by the parties is a joint tenancy with right of survivorship or a tenancy in common. This is in conflict with that rule of construction that joint owners of property, real or personal, will be construed as holding as tenants in common and not as joint tenants with right of sur-vivorship where there has been no express manifestation of intent otherwise.

Therefore, I must dissent.

MADDOX, FAULKNER and SHORES, JJ., concur.

      . For other cases on this point, see Inwood v. Nilsson, 96 Ill.App.2d 272, 238 N.E.2d 277 (1968), and First National Bank & Trust Co. of Fargo v. Green, 66 N.D. 160, 262 N.W. 596 (1935).


author: JONES, Justice.

text:
    Ruth WALLACE v. ALABAMA ASSOCIATION OF CLASSIFIED SCHOOL EMPLOYEES; and John Smith.
    83-717.
    Supreme Court of Alabama.
    Nov. 30, 1984.
    Rehearing Denied Jan. 25, 1985.

      Ronnie L. Williams, Mobile, for appellant.
    A1 Pennington and Nicki E. Patterson, Mobile, for appellee.
   JONES, Justice.

This is an appeal from a summary judgment. The facts are as follows:

Plaintiff Ruth Wallace filed a complaint in the Circuit Court of Mobile County, Alabama, naming the Alabama Association of Classified School Employees (AACSE) and its executive director, John Smith, as Defendants. Wallace alleged that she was a food service employee at Archard Elementary School; that she was a member of the AACSE, an association which provides its members with legal assistance when they are fired from their jobs or have other employment problems; and that when she was fired from her job, Plaintiff contacted AACSE and requested legal assistance, which the association did not provide. Plaintiff’s complaint then alleged breach of contract and bad faith. Defendants filed an answer denying Plaintiff’s allegations of breach of contract and bad faith and responded to a set of interrogatories before moving for summary judgment. The motion for summary judgment alleged that there was no genuine issue of material fact and that Plaintiff’s action was time barred by a federal statute of limitations. The trial court granted Defendants’ summary judgment motion. Plaintiff now appeals. We affirm the trial court’s summary judgment.

OPINION

A. The Affirmative Defense

Plaintiff first argues that the trial court was not at liberty to consider Defendants’ allegations in their summary judgment motion that the statute of limitations had run on Plaintiff’s cause of action. The basis for this argument is that the statute of limitations is an affirmative defense which must be affirmatively pleaded before it may be raised in a summary judgment motion, and Defendants did not plead it.

In the context here presented, Plaintiff is correct. The statute of limitations is specifically listed as an affirmative defense in A.R.Civ.P. 8(c); and the rule requires that it be specially pleaded. Once an answer is filed, if an affirmative defense is not pleaded, it is waived. Robinson v. Morris, 352 So.2d 1355, 1357 (Ala.1977). The defense may be revived if the adverse party offers no objection (Bechtel v. Crown Petroleum Corp., 451 So.2d 793, 796 (Ala. 1984)); or if the party who should have pleaded it is allowed to amend his pleading (Piersol v. ITT Drill Division, Inc., 445 So.2d 559, 561 (Ala.1984)); or if the defense appears on the face of the complaint (cf., Sims v. Lewis, 374 So.2d 298, 302 (Ala. 1979); and Williams v. McMillan, 352 So.2d 1347, 1349 (Ala.1977)). See, also, 2A J. Moore, Federal Practice § 8.27[3] at 8-251 (3d ed.1984). But, specifically, a defendant “cannot revive [the waived affirmative defense] in a memorandum in support of a motion for summary judgment.” Funding Systems Leasing Corp. v. Pugh, 530 F.2d 91, 96 (5th Cir.1976). To be sure, if a defendant moves for summary judgment before he files an answer, the court may recognize an affirmative defense argued in support of the summary judgment motion because, in that instance, it has not been waived. Id.

That, however, is not the instant case. Here, Defendants filed an answer without an affirmative pleading of the statute of limitations defense; and, then, over Plaintiffs objections, Defendants attempted to raise the defense in their summary judgment motion. This they cannot do. Bechtel, supra.

If the statute of limitations was the basis for the trial court’s granting of Defendants’ summary judgment, we would have to reverse. There is, however, an additional ground on which the trial court could have granted Defendants’ motion for summary judgment: that there is no genuine issue of material fact. It is a cardinal rule of appellate review that where the trial judge’s ruling is based on no specific ground, his judgment must be sustained on appeal if any good ground is presented. Sterling Oil of Oklahoma, Inc. v. Pack, 291 Ala. 727, 747, 287 So.2d 847, 864 (1973).

B. Genuine Issue of Material Fact

We now examine the record to test the “no genuine issue of material fact” ground. Plaintiff averred in her complaint that AACSE provided legal assistance to its members, that she was a member of AACSE, that she had requested legal assistance, and that she did not receive legal assistance from it. All was well and good for the Plaintiff at this point. But, then, in response to one of Plaintiff’s interrogatories, Defendants answered that Plaintiff had never requested legal assistance. Once Defendants moved for summary judgment and included the answers to Plaintiff’s interrogatories in support of their motion, Plaintiff could no longer rest on the allegations of her complaint. A.R. Civ.P. 56(e). Plaintiff did file a response to Defendants’ motion, but nothing more, and a “paper showing” is not sufficient to raise a genuine issue of material fact.

Plaintiff’s failure to offer anything other than a bare response to Defendants’ motion was fatal, for “the failure of the party opposing the motion to offer any affidavits or other testimony to contradict the evidence of the moving party leaves the Court no alternative but to consider that evidence uncontroverted.” Thompson v. Lee, 439 So.2d 113, 115 (Ala.1983). With uncontro-verted testimony before it that Plaintiff had never requested a lawyer, the trial court correctly concluded that Plaintiff had stated no cause of action. Therefore, the trial court correctly granted summary judgment.

AFFIRMED.

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

      . Answers to interrogatories may be considered in a summary judgment motion as long as they are otherwise admissible and meet the requirements of Rule 56. J.B. Jones Timber Co. v. Williams, 357 So.2d 353, 354 (Ala.Civ.App.1978); A.R.Civ.P. 56(c); 10 Wright & Miller, Federal Practice & Procedure: Civil § 2722 (1969).


author: SHORES, Justice.

text:
    Jessie V.L. LETT, Administratrix of the Estate of Sharon Lett Watts, deceased v. Ruby Jo WATTS, Administratrix of the Estate of William Gary Watts, deceased.
    83-900.
    Supreme Court of Alabama.
    Dec. 21, 1984.
    Rehearing Denied Jan. 25, 1985.

      Ray F. Robbins II, Talladega, for appellant.
    James S. Hubbard and William Henry Agee, Anniston, for appellee.
   SHORES, Justice.

William Gary Watts and his wife, Sharon Lett Watts, died intestate in an automobile accident on March 6, 1983. There were no children born of their marriage, and neither had any lineal descendants.

The plaintiff, Jessie V.L. Lett, in her capacity as administratrix of the estate of Sharon Lett Watts, filed a complaint against the defendant, Ruby Jo Watts, in her capacity as administratrix of the estate of William Gary Watts, wherein she asked the court to declare that the estate of Sharon Watts was a joint owner of the numerous items of real and personal property which were in the name of Gary Watts and possessed by both Gary and Sharon Watts at the time of their deaths. The plaintiff also asked that a constructive trust be imposed on certain property claimed by the defendant. The plaintiff filed an amendment to her complaint, wherein she added a second count seeking a judgment against the defendant for work and labor done by Sharon Watts for Gary Watts from the date of their marriage on June 29, 1979, until their deaths. The defendant moved to dismiss the second count for failure to comply with the non-claim statute, § 43-2-350(b), Ala.Code 1975. A ruling on the defendant’s motion was reserved until after the trial. The case was tried before a judge who, after hearing all of the evidence, entered a judgment, including extensive findings of fact. The pertinent portions of those findings are as follows:

(1) W.T. Watts was the father of Gary Watts and, during his lifetime and until his death on August 12, 1979, operated a business known as “Watts Construction Company,” which was a sole proprietorship individually owned by W.T. Watts.

(2) Immediately after the death of his father, Gary Watts took over and continued to operate the business.

(3) Watts Construction Company was a trade name under which Gary Watts did business from August 12, 1979, continuously until the date of his death.

(4) W.T. Watts’s account with the Alabama Department of Industrial Relations and the subsequent account number assigned to Gary Watts d/b/a Watts Construction Company indicate that the business operated by Gary Watts was a successor business to that owned by his father, and the records of the Alabama Department of Industrial Relations further indicate that Gary Watts acquired the company as a going business from his father and that it was a sole proprietorship individually owned by Gary Watts during his lifetime.

(5) The records of the Motor Fuels Division of the Alabama Department of Revenue also indicate that the business was a sole proprietorship individually owned by Gary Watts during his lifetime.

(6) All of the work done by Gary Watts under the trade name Watts Construction Company for Alabama Power Company, hereinafter referred to as APCo, was completed pursuant to contracts entered into with APCo by Gary Watts, individually, and APCo looked to him solely for the performance of those contracts, and APCo, for its own business purposes, regarded Watts Construction Company as being a sole proprietorship individually owned by Gary Watts. All business insurance maintained by Watts Construction Company in compliance with contractual responsibilities entered into by Gary Watts with APCo was in the name of Gary Watts solely, and all records related to the insurance noted that the company was a sole proprietorship owned by Gary Watts.

(7) All of the reports filed with the Internal Revenue Service (I.R.S.) by APCo in connection with payments made in accordance with contracts entered into with Gary Watts, d/b/a Watts Construction Company, designated his social security number as the appropriate taxpayer payee who should report the payments to the I.R.S.

(8) Gary Watts inherited from his father the equipment and other personal property necessary to continue the operation of the company, and subsequent to the continuation of the business and from the revenues received from contractual payments by APCo, he acquired other items of equipment and personal property which were being used in the business on the date of his death, so that the equipment and other personal property being used in the business consisted of certain inherited property and also of certain property acquired by purchase, and, in some cases, by the trading in of inherited property on the newly purchased property, as well as by the trading in of subsequently acquired property.

(9) For the calendar years 1979, 1980, and 1981, Gary and Sharon Watts filed jointly with the I.R.S., with each return being duly executed by both. On each return, Gary Watts listed his occupation as “construction” and reported all of the income of Watts Construction Company for the year applicable and listed himself as the “proprietor” of Watts Construction Company and the same “employer identification number” for federal tax reporting purposes as was assigned by the I.R.S. to his father when he operated the business. On each return, Sharon Watts listed her occupation as “housewife.”

(10) For calendar years 1979, 1980, and 1981, Gary and Sharon Watts filed returns with the Alabama Department of Revenue, with each return being duly executed by both. On each return, Gary Watts listed his occupation as “construction” and Sharon Watts listed her occupation as “housewife.”

(11) On each of the federal returns, Gary Watts paid self-employment taxes based on his net earnings doing business as Watts Construction Company; however, on each return, Sharon Watts neither reported earnings from self-employment, nor paid any self-employment taxes for social security purposes.

(12) Sharon Watts was a cosmetologist from July 1, 1978, until 1982, as reported on an application for employment which she executed with the U.S. Postal Service and which further stated that her “reason for wanting to leave” that employment was “started college.”

(13) Sharon Watts was issued a substitute teacher's certificate on December 8, 1982, which was in effect at the time of her death, and she did some substitute teaching pursuant to the certificate.

(14) On the date of her death, Sharon Watts was employed by the U.S. Postal Service as a substitute mail carrier.

(15) During the winter quarter of 1983 and until her death, Sharon Watts was enrolled as a full-time college student, pursuing a degree in elementary education.

(16) Funds held on deposit in a checking account, which were interpleaded into the court and held on deposit by the clerk, were the property of Gary Watts, d/b/a Watts Construction Company.

(17) On the date of her death, Sharon Watts owned a quilt and certain other personal property and personal effects located inside the residence owned by Gary Watts and occupied by the couple.

(18) All other property was owned by Gary Watts, individually.

The trial court then held as follows in its decree:

(1) That Watts Construction Company was a sole proprietorship individually owned by Gary Watts and is now the property of the defendant.

(2) That the quilt and other personal property and effects located inside the residence occupied by the couple and belonging to Sharon Watts are the property of the plaintiff.

(3) That the net proceeds from the checking account of Gary Watts, d/b/a Watts Construction Company, held on deposit by the clerk of the court, are the property of the defendant.

(4) That all other property found to belong to Gary Watts individually is the property of the defendant.

After the trial, the court granted the defendant’s motion to strike the plaintiff’s second count, and the plaintiff appealed. We affirm.

The plaintiff contends here, as she did at trial, that Gary and Sharon Watts were partners in the business of Watts Construction Company and argues that the trial court erred in its finding that Watts Construction Company was a sole proprietorship individually owned by Gary Watts at the time of his death. We disagree.

There was evidence that both Gary and Sharon Watts worked in the business of Watts Construction Company, that both executed loans to cover the operating expenses of the company, and that both wrote checks on the company account for business and personal purchases. The plaintiff relies on § 10-8-20(4), Ala.Code 1975, which creates a presumption of partnership where a person receives a share of the profits of a business. The plaintiff argues that Sharon Watts shared in the profits of the business by drawing checks on the business account for personal purchases and shared risk of loss by executing loans for business purposes, thereby raising a presumption that the couple were partners, which was not rebutted in the evidence. Again, we disagree.

There is no express partnership agreement, and under the evidence produced at trial, the court was justified in its finding that no partnership existed. The trial court heard all of the evidence, examined the exhibits, and observed the demean- or of the witnesses. It decided that, under the circumstances, it was not the intention of Gary and Sharon Watts to act as a partnership. Where a trial court decides a factual issue on conflicting evidence, this Court will not. reverse unless there is no evidence to support the factual determination so made. Burbic Contracting Co. v. Willis, 386 So.2d 419 (Ala.1980). There was ample evidence introduced at trial to support the trial court’s findings and, consequently, there was no error in its determination.

The plaintiff next contends that the trial court erred by excluding the testimony of William David Taylor. Again, we disagree.

During the course of the trial, the testimony of Taylor, a witness for the plaintiff, was excluded as violating § 12-21-163, Ala.Code 1975, commonly known as the Dead Man’s Statute. Taylor had filed a claim against the estate of Gary Watts, alleging that he was a partner with Gary Watts in an aviation business and that he owned an interest in certain property belonging to that partnership. The property claimed by Taylor was also claimed by the defendant to be a part of Gary Watt’s estate.

The defendant contends that Taylor’s claim to this property rendered him incompetent to testify under the statute.

The plaintiff insists that Taylor’s claim presented no direct and immediate conflict with the estate of Gary Watts to the extent that he would be rendered incompetent to testify by virtue of a pecuniary interest in the result of the case.

The statute provides in pertinent part as follows:

“[N]o person having a pecuniary interest in the result of the action or proceeding shall be allowed to testify against the party to whom his interest is opposed as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the action or proceeding ... unless called to testify thereto by the party to whom such interest is opposed or unless the testimony of such deceased person in relation to such transaction or statement is introduced in evidence by the party whose interest is opposed to that of the witness.... ”

Thus, the statute has been construed to prohibit testimony where four facts co-exist: (1) the testimony concerns a transaction with or a statement of a person now deceased; (2) the estate of the deceased will be affected by the outcome of the suit; (3) the witness has a pecuniary interest in the suit; and (4) the interest of the witness is adverse to the decedent or his estate. Staik v. Jefferson Federal Savings and Loan Ass’n of Birmingham, 434 So.2d 763 (Ala.1983).

There were two estates interested in the result of this case. The estate of Sharon Watts would be increased if the plaintiff were successful, while the estate of Gary Watts would be diminished if that should occur. Taylor’s testimony concerned transactions and conversations that he had had with both Gary and Sharon Watts. Taylor had a pecuniary interest in the case by virtue of his claim of ownership to property also claimed by the defendant for the estate of Gary Watts and by the plaintiff for the estate of Sharon Watts. In this respect, his interest was adverse to both estates.

The purpose of the Dead Man’s Statute is to prevent testimony by a living witness having a pecuniary interest in an estate as to transactions with or statements made by persons who are no longer alive to contradict such testimony. The purpose of the statute was served in this case by the trial court’s proper exclusion of Taylor’s testimony.

The plaintiff finally contends that the trial court erred in striking her second count.

On March 12, 1983, letters of administration in the estate of Gary Watts were granted to the defendant. The plaintiff filed her complaint for declaratory judgment on April 21, 1983. The plaintiff filed an amendment to her complaint on December 2,1983, adding a second count for work and labor done. After the trial, the court granted the defendant’s motion to strike the second count as violating the non-claim statute, § 43-2-350, Ala.Code 1975.

The plaintiff insists that this was reversible error because the amendment was merely an assertion of an alternative theory of recovery concerning funds and property against which a timely claim had previously been made in the original complaint. The plaintiff, relying on Barrett v. Fondren, 262 Ala. 537, 80 So.2d 243 (1955), and Rule 15(c), Alabama Rules of Civil Procedure, argues that the amendment should relate back to the date the original complaint was filed.

The defendant, relying on this Court’s holding in Motley v. Battle, 368 So.2d 20 (Ala.1979), argues that the plaintiff’s claim for work and labor cannot be saved by the relation back doctrine of Rule 15(c). We agree.

The non-claim statute, in pertinent part, provides:

“All claims against the estate of a decedent ... whether due or to become due, must be presented within six months after the grant of letters testamentary or of administration; and if not presented within that time, they are forever barred and the payment or allowance thereof is prohibited.”

The purpose of the non-claim statute is to expedite the orderly settlement of estates by giving the personal representative notice of “all claims against the estate.” In Barrett, supra, this Court held that a civil action filed within six months after the grant of letters of administration was a sufficient presentation of a claim against an estate to give the personal representative such notice.

In the present case, there were no allegations in the action for declaratory judgment and the claim for the imposition of a constructive trust to put the defendant on notice that a claim for work and labor would be made. We hold that the trial court did not err in striking the count for work and labor as being barred by the non-claim statute.

Other errors argued by the plaintiff this Court finds without merit in that there was evidence introduced at trial sufficient to support the trial judge’s decision.

AFFIRMED.

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


text:
    J.D. LILLY v. Percy EARL and Wilbert Earl, Sr.
    83-1082.
    Supreme Court of Alabama.
    Dec. 21, 1984.
    Rehearing Denied Jan. 25, 1985.
    Marion R. Vickers, Jr. of Vickers, Riis, Murray & Curran, Mobile, for appellant.
    Gregory M. Friedlander of Marr & Fried-lander, Mobile, for appellees.
   SHORES, Justice.

J.D. Lilly appeals from a partial summary judgment granted in favor of Percy Earl and Wilbert Earl, Sr., in this action to recover half of the proceeds from a public sale of real property for division. We reverse and remand.

Levi Nabors and his wife Bulah owned approximately seven acres of land as tenants in common. On June 3, 1975, they executed a certain instrument, the nature and validity of which determine this case. In pertinent part, this instrument reads:

“KNOW ALL MEN BY THESE PRESENTS, That, LEVI NABORS and wife BULAH NABORS, hereinafter called the GRANTORS, for and in consideration of the sum of TEN ($100) and other good and valuable considerations paid to LEVI NABORS and wife BULAH NABORS by LEVI NABORS hereinafter referred to as the GRANTEES, as tenants in common with equal interests, for the period of term of their joint lives, upon the death of either of them, then to the survivor of them, to the heirs and assigns of such survivor, all that real property ... described as follows, to-wit:
“TO HAVE AND TO HOLD to the said LEVI NABORS and wife his heirs and assigns forever.
“And we the said Grantors, do covenant with said GRANTEES, as tenants in common, with equal interests for the period or term of their joint lives, upon the death of either of them, then to the survivor thereof in fee simple, forever.
“AND, except as to taxes hereafter falling due, which are assumed by the GRANTEES, THE SAID GRANTORS for themselves, their heirs, executors and administrators, hereby covenant with the said GRANTEES, their heirs and assigns that they are seized of an indefeasible estate in fee simple in said property, that said property is free from encumbrances and that they hereby WARRANT And WILL FOREVER DEFEND the title to and possession of said property unto the said GRANTEES, their heirs and assigns, against the lawful claims whomsoever.”

Bulah Nabors died intestate in 1978 and left as her sole heir a son by a previous marriage, J.D. Lilly, who claims one half of the proceeds from the sale of the land involved. Subsequent to the death of Bu-lah Nabors, Levi Nabors also died intestate, leaving fourteen heirs, two of whom are the plaintiffs in this case, Percy Earl and Wilbert Earl, Sr. The plaintiffs filed an action for sale for division of the seven acres, naming the other twelve heirs of Levi Nabors as defendants. Lilly, with the permission of the trial court, intervened in the action, claiming to own an undivided one-half interest in the property. The property was sold at a public sale, which was confirmed by the trial court, and disbursement of the net proceeds from the sale was reserved, pending the determination of Lilly’s interest. The plaintiffs filed a motion for partial summary judgment, seeking a determination that the property was owned solely by the heirs of Levi Na-bors. This motion was granted, and Lilly appeals.

Levi’s heirs contend that the instrument quoted conveyed title from Levi and Bulah Nabors as tenants in common to Levi and Bulah Nabors as joint tenants with right of survivorship. Thus, they argue, upon the death of Bulah Nabors, Levi Nabors became sole owner of the property under the survivorship provision of the instrument, and his heirs now own the entire interest in the land.

Bulah’s son insists that the instrument is not a valid deed because it is ambiguous and contains no operative words of conveyance such as “grant,” “bargain,” “sell,” or “convey.” Therefore, he argues, Levi and Bulah Nabors continued to hold title to their property as tenants in common until Bulah Nabors died intestate, when her undivided one-half interest passed to him as her sole heir at law. We agree.

Section 35-4-21, Ala. Code 1975, reads as follows:

“A seal is not necessary to convey the legal title to land to enable the grantee to bring a civil action. Any instrument in writing, signed by the grantor or his agent having a written authority, is effectual to transfer the legal title to the grantee, if such was the intention of the grantor, to be collected from the entire instrument.”

In Webb v. Mullins, 78 Ala. 111 (1884), after quoting § 2948 of the Code of 1876, the predecessor of § 35-4-21, supra, the Court stated:

“ ⅜ * * The manifest purpose of the statute is to dispense with the necessity of a seal to a valid conveyance, and of formal, technical words of grant, release, or transfer. The statute is remedial, and should be liberally construed, so far as may be necessary to suppress the mischief, and effectuate the purpose and. intent of the law-makers; but, being also in modification of the common law, it will not be presumed to modify it farther than is expressly declared; and construction, or intendment, will not be resorted to, for the purpose of extending its operation. ...
“At common law, a deed must contain words of grant, release, or transfer, in order to pass the legal title to the land designed to be conveyed. The title to land can be transferred from one person to another, only by apposite and appropriate language. It was not the intention of the statute to dispense with the use of any words whatever, operative to convey. By the statute, the duty is imposed upon the courts to liberally construe the words employed in the conveyance as words of transfer, and give them effect and operation according to the intention of the grantor, to be collected from the entire instrument. There must, however, be some words intended as words of conveyance. They cannot be supplied by judicial interpolation.” (Emphasis added.)

In Sanford v. Alabama Power Co., 256 Ala. 280, 286, 54 So.2d 562, 567 (1951), this Court quoted with approval this statement from Long v. Holden, 216 Ala. 81, 112 So. 444 (1927):

“Innumerable cases may be cited to the proposition that the cardinal rule for the construction of [a] written instrument is to ascertain, if possible, from the language employed, the intention of the parties, and then to give effect to such intention, if it can be done without violation of law. As often stated, the intention must be gathered from a fair consideration of the whole instrument ... or from its ‘four corners.’ ...
“In most of the cases the qualification is properly stated that the intention, as gathered from the language of the whole deed, will be effectuated if consistent with law.... This means, of course, where deeds and devises to real estate are concerned, that even a clearly stated intention will be ineffectual if the instrument does not, as to the mode of its execution, and the use of language apt for the purpose stated, meet the requirements of the law.”

In the present case, the instrument as a whole is ambiguous. The first paragraph purports to be a granting clause, but contains no words of transfer or conveyance, and the identity of the grantee or grantees is uncertain. The words “hereinafter referred to as the GRANTEES” are preceded by the words “for and in consideration of the sum of TEN ($100) and other good and valuable considerations paid to LEVI NA-BORS and wife BULAH NABORS by LEVI NABORS....” Thus, the meaning of the subsequent survivorship language is doubtful. The habendum clause is equally unclear and inconsistent and cannot be read in harmony with the first paragraph to identify the grantee(s) or to provide the necessary words of conveyance. The ha-bendum clause reads, “TO HAVE AND TO HOLD to the said LEVI NABORS and wife,” but then refers to “his heirs and assigns forever.” “TO HAVE AND TO HOLD” might in some instances be construed as words of transfer or conveyance. However, in this clause, reference is made to Levi Nabors and wife, and there is no clear indication from the first paragraph that Bulah Nabors was an intended grantee. Being unable to infer the intention of the grantors in this respect, we cannot construe the language employed in the ha-bendum clause as words of transfer and give them any meaningful operation.

We hold, therefore, that the instrument executed by Levi and Bulah Nabors on June 3, 1975, contained no operative words of conveyance and was void. Accordingly, Levi and Bulah Nabors continued to hold title to the property as tenants in common until Bulah Nabors’s death, when her undivided one-half interest passed to Lilly as her sole heir at law, and he is entitled to one half of the net proceeds from the sale of the land.

The judgment is, therefore, reversed and the cause remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


author: FAULKNER, Justice.

text:
    Larry Wayne WHITSON v. Charles BAKER and Troy Howton.
    83-939-CER.
    Supreme Court of Alabama.
    Jan. 11, 1985.
    Larry Wayne Whitson, pro se.
    J. Terry McElheny of Dominick, Fletcher, Yeilding, Wood & Lloyd, Birmingham, for respondents.
    Davis Carr of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for amicus curiae Alabama Defense Lawyers Association.
   FAULKNER, Justice.

The Eleventh Circuit Court of Appeals has certified the following question to us: “If a cause of action governed by a one year statute of limitations accrues while the plaintiff is incarcerated pending trial on a criminal charge, and six months later the plaintiff is imprisoned on the criminal charge for a term less than life, does Alabama Code [1975] § 6-2-8 operate to toll the statute of limitations?” 732 F.2d 856.

Larry Wayne Whitson was arrested and charged with first degree burglary in April 1978. Because he was unable to post bond, he was held in the Jefferson County jail at Bessemer until his trial. On September 15 and 16, while Whitson was in jail awaiting trial, certain incidents occurred which Whit-son contends constituted a violation of his Eighth Amendment rights. Whitson was subsequently tried and was convicted of burglary and sentenced to twenty-five years’ imprisonment. He is currently serving the sentence in an Alabama prison.

On December 1, 1980, Whitson filed an action in the United States District Court for the Northern District of Alabama against the warden and two sergeants assigned to the Bessemer jail. His complaint alleged that the incidents which took place in September 1978 were actionable under 42 U.S.C. § 1983. The district court ruled that Whitson’s claim was time barred by the applicable statute of limitations, § 6-2-39(a)(5), Code of Alabama 1975. On appeal, the Eleventh Circuit Court of Appeals agreed that Alabama’s one-year statute of limitations was applicable, but remanded the case to the district court for consideration of whether the statute of limitations was tolled by § 6-2-8(a), Code of Alabama 1975, which provides:

“If anyone entitled to commence any of the actions enumerated in this chapter, to make an entry on land or enter a defense founded on the title to real property is, at the time such right accrues, below the age of 19 years, insane or imprisoned on a criminal charge for any term less than for life, he shall have three years, or the period allowed by law for the commencement of such action if it be less than three years, after the termination of such disability to commence an action, make entry, or defend; provided, however, that no disability shall extend the period of limitations so as to allow such action to be commenced, entry made or defense made after the lapse of 20 years from the time the claim or right accrued.”

On remand, the district court ruled that the tolling statute was inapplicable. It reasoned that since the class of persons protected by the statute includes those who are “imprisoned on a criminal charge for any term less than life,” a prisoner must have been convicted on a criminal charge and sentenced for a term less than life in order for the tolling statute to be applicable. Since Whitson had not yet been convicted when the alleged violations of his civil rights took place, the court ruled that § 6-2-8 was inapplicable. The case was again appealed to the Eleventh Circuit and the question of the applicability of § 6-2-8 was certified to us.

In addition to the parties’ briefs, briefs were filed by the State of Alabama and on behalf of the Alabama Defense Lawyers Association. The primary thrust of the amicus briefs is that, because of certain policy reasons, the tolling statute should not be applied to prisoners’ § 1983 actions. If we were to conclude that the statute is inapplicable to prisoners’ § 1983 actions based on the public policy reasons enumerated by the amici, there would be no need to consider whether the statute applies to Whitson’s particular situation. We will, therefore, discuss the public policy arguments first.

The tolling statute was enacted prior to the compilation of the 1852 Alabama Code. The state argued that the statute was passed because, at that time, prisoners were “civilly dead” and were unable to bring civil suits. Therefore, it argues, the intent of the statute was to preserve a prisoner’s right to sue until he was released and could file the action. The state reasons that since prisoners are now allowed to bring lawsuits, see e.g., Strickland v. State, 43 Ala.App. 311, 189 So.2d 764 (1965); Whitehead v. Baranco Color Labs, Inc., 353 So.2d 793 (Ala.1977), the reason for the rule no longer exists. The state provides prisoners with paper, envelopes, pencils, stamps, and legal research materials to aid them in filing civil rights actions. As a result, over 800 actions under § 1983 are filed against the state each year.

While it is difficult to determine the status of prisoners with regard to their right to file civil actions in 1852, we have been unable to substantiate the state’s claim that prisoners sentenced to terms of less than life during that period of time were civilly dead. The concept of civil death was an outgrowth of the ancient English practice of “outlawry.” See “History and Theory of Civil Disabilities”, 23 Vand.L.Rev. 941 (1970). In the absence of statute, the concept of civil death has generally been denied in this country. Holmes v. King, 216 Ala. 412, 414, 113 So. 274 (1927). Alabama did have a civil death statute in force when the tolling statute was enacted, but it applied to those sentenced to life imprisonment. 1852 Code § 3637. See Title 61, § 3, Code of Alabama 1940 (Recomp.1958). The tolling statute, on the other hand, applies to those impributed for a term less than life.

It appears, therefore, that the civil death statute applied to a class of persons different from those the tolling statute applied to. Furthermore, the cases we have found dealing with civil death involved persons serving life sentences. See Holmes v. King, 216 Ala. 412, 113 So. 274 (1927); Quick v. Western Ry. of Alabama, 207 Ala. 376, 92 So. 608 (1922). It does not appear, therefore, that persons imprisoned for terms less than life were considered “civilly dead” under Alabama law at the time the tolling statute was enacted. If the civil death statute and the tolling statute had been co-extensive in their scope, one could make the argument that when the legislature repealed the civil death statute, Acts 1965, 1st Ex.Sess., p. 381, § 1, it intended to amend the tolling statute to eliminate its applicability to prisoners’ suits. The tolling statute did not apply to the same class of persons as the civil death statute, however.

The Defense Lawyers Association also argued that public policy considerations militate against applying the tolling statute to § 1983 actions. It also pointed out that prisoners have free access to the courts to redress civil rights grievances and, therefore, are not disabled by their incarceration. In support of their argument that the tolling statute should not apply, they rely on Miller v. Smith, 431 F.Supp. 821 (N.D. Tex.1977), and Getz v. Bruch, 400 F.Supp. 1033 (E.D.Pa.1975), in which United States district courts refused to apply tolling statutes in § 1983 actions.

Although we are inclined to agree with the premise that, as a matter of public policy, prisoners should not be allowed to rely on the tolling statute in bringing § 1983 actions, we are, nonetheless bound by the statute. If the tolling provisions were judge-made law instead of statutory law we would, no doubt, be inclined to refuse to apply them to prisoners’ § 1983 suits. The legislature has not, however, seen fit to repeal or modify the tolling statute, even in the face of numerous civil rights actions filed by state prisoners. We do not express any opinion on the question of whether the tolling provisions of § 6-2-8 must be applied by federal courts in civil rights actions as a part of the applicable statute of limitations. Applicability of state statutes of limitations to civil rights actions in federal courts is not a matter of compulsion, but “merely a matter of convenience.” Donaldson v. O’Connor, 493 F.2d 507, 529 (5th Cir.1974). We are not in the same position as the federal courts regarding the applicability of Alabama’s statutes. Those statutes are binding on us. We are not charged with questioning the wisdom of the legislation. Our function is to interpret legislation and to confine it within constitutional bounds. Alabama Constitution, § 43; City of Birmingham v. Henry, 224 Ala. 239, 139 So. 283 (1931). The argument of the Defense Lawyers Association is one which should be addressed to the federal courts.

The defendants also made an argument regarding the applicability of the tolling statute to § 1983 actions. Their argument was based on the wording of the statute. Section 6-2-8 states that it is applicable to “actions enumerated in this chapter.” Whitson’s action is based on a federal statute, 42 U.S.C. § 1983. The defendants argue that since § 1983 actions are not provided for in the Alabama Code they are not “enumerated” within the applicable “chapter” within the meaning of § 6-2-8. In support of that argument, defendants rely on Nicholson v. Lockwood Greene Engineers, Inc., 278 Ala. 497, 179 So.2d 76 (1965), and Mewburn v. Bass, 82 Ala. 622, 2 So. 520 (1887).

Section 6-2-8 is part of Chapter 2 of Title 6 of the Code of Alabama 1975. Chapter 2 does not list causes of actions as such; it enumerates statutes of limitations. Both of the cases relied on by the defendants involve actions governed by periods of limitations not found in Chapter 2. Nicholson, supra, involved a wrongful death action based on Title 7, § 123, Code of Alabama 1940, which provided that the action must be brought within two years after the deceased’s death. In response to plaintiff’s argument that the tolling statute was applicable, this Court stated that Section 6-2-8 “relates to statutes of limitation, and not to actions, such as the present one, where the time within which the statutorily created cause of action is fixed in the act creating the right, and is of the essence of the right.” 278 Ala. at 500, 179 So.2d at 78. Similarly, in Mewburn, supra, this Court ruled that the tolling statute was inapplicable to a mortgagor’s right of redemption. The two-year period provided for such actions is also contained in the statute providing for the action, not in the chapter enumerating statutes of limitations.

Unlike the statutes in Mewburn and Nicholson, § 1983 contains no limitations period. Federal courts look to state law to determine the applicable limitations period. Federal courts also apply the tolling statutes applicable to state statutes of limitations. Johnson v. Railway Express Agency, 421 U.S. 454, 464, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). The applicable statute of limitations, § 6-2-39(a)(5), is contained in Chapter 2. Since the statute of limitations applicable to § 1983 actions is contained in Chapter 2, it appears to us that the requirement of “enumeration” in Chapter 2 contained in the tolling statute is satisfied with regard to § 1983 actions.

Having determined that the tolling statute is applicable to § 1983 actions, we must now address the question of whether Whit-son is within the class of persons protected by the statute, which brings us to the question certified to us by the Eleventh Circuit Court of Appeals. If a cause of action accrues while a prisoner is being held in a county jail awaiting trial on a charge of first degree burglary and six months later he is sentenced to a term less than life, does § 6-2-8 apply?

The dispositive language in the statute is the phrase “imprisoned on a criminal charge for any term less than life.” Although the terms “imprisoned” and “criminal charge” are generally broad enough to include someone being held in a jail awaiting trial, see, e.g., Austin v. Brammer, 555 F.2d 142, 143 (Ohio 6th Cir. 1977); Grayson Variety Store, Inc. v. Shaffer, 402 S.W.2d 424, 425 (Ky.1966); United States v. Patterson, 150 U.S. 65, 14 S.Ct. 20, 37 L.Ed. 999 (1893), those terms are qualified in this statute by the phrase “for any term less than life.” The word “term” appears to us to refer to a period of prescribed duration. See Black’s Law Dictionary 1639, (rev. 4th ed. 1979). It appears, therefore, that the legislature intended for the statute to apply to prisoners who have been convicted and are serving sentences of less than life. See Ball v. Woods, 402 F.Supp. 803, 805, n. 1 (N.D.Ala. 1975). Since Whitson was being held pending trial when the action accrued, he does not fall within the class of persons protected by the statute. The fact that Whitson was later convicted and sentenced to a term less than life does not bring him within the operation of the tolling statute. An intervening disability does not bring a party within § 6-2-8. Street v. Shaddix, 197 Ala. 446, 73 So. 73 (1916).

Based on the foregoing, it is our opinion that a prisoner being held pending trial who is subsequently convicted and sentenced to a term of less than life does not fall within the class of persons protected by § 6-2-8, Code of Alabama 1975.

QUESTION ANSWERED.

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

TORBERT, C.J., and MADDOX and SHORES, JJ., concur in the result.

      . In this case we hold that § 6-2-8 is inapplicable to Whitson's case because the action arose prior to Whitson’s conviction and sentence. Although the statute is binding until it is amended or repealed we do not express any opinion as to how it affects the rights of prisoners who, unlike Whitson, fall within its scope. Given the fact that prisoners are not under a civil disability, in that they can in fact bring civil suits, it is difficult to predict the effect of § 6-2-8 which tolls prisoner’s actions until "the termination of [their] disability." We await the ferreting out of that issue until it arises in an actual case or controversy.