text:
    Douglas C. MARTINSON, et al. v. Wesley J. CAGLE, et al.
    82-1260.
    Supreme Court of Alabama.
    July 20, 1984.

      J. Allen Brinkley of Brinkley & Ford, Huntsville, for appellants.
    Donald N. Spurrier of Williams, Spurrier, Rice, Henderson & Grace, Huntsville, for appellees Wesley J. Cagle and Sammie J. Cagle.
    James R. Sturdivant, Huntsville, for ap-pellee Michael Adams.
    Norman Bradley, Jr., Huntsville, Guardian ad Litem for appellee Michael Adams.
   PER CURIAM.

The Martinsons, plaintiffs, appeal from a judgment entered upon a jury verdict in this action to recover damages for personal injuries allegedly caused by the defendants. We affirm.

Mr. and Mrs. Martinson and their son were injured when their car was struck in the rear by a car owned by Mr. Cagle and operated by his 16-year-old son, Bradley Cagle. Brad’s best friend, Mike Adams, aged 15 years, was a passenger in the Cagle car at the time of the accident.

The Martinsons’ complaint contains, in Count One, allegations that Brad and Mike, as joint venturers, had negligently, wantonly, or willfully caused the injuries to the Martinsons. Count Three contains allegations that Brad and Mike had aided and abetted and acted as an accomplice for each other in the commission of six crimes, as a result of which the Martinsons were injured. Counts Five, Six, and Seven are restatements of parts of Count Three. Count Four alleges that Brad and Mike committed an assault and battery on the Martinsons, and Count Eight alleges a conspiracy to commit an assault and battery. Against Mr. and Mrs. Cagle, the Martin-sons claim damages in Count Two for the negligent entrustment of the automobile to Brad.

Counts Three, Five, Six, and Seven were dismissed upon defendants’ pre-trial motion. At the close of the trial, the trial court also granted the defendants’ motion for directed verdict as to Counts Four and Eight. The only counts submitted to the jury were those alleging negligent entrustment by Mr. and Mrs. Cagle and negligence and wantonness by Brad and Mike. The jury returned a verdict in favor of the Martinsons and against Brad on the negligence claim and verdicts in favor of the other defendants on the remaining claims. Judgment was entered accordingly. The Martinsons appeal from this final judgment.

The Martinsons contend that it was error to dismiss Counts Three, Five, Six, and Seven, and to grant a directed verdict as to Counts Four and Eight.

With regard to the four counts seeking civil liability for the criminal acts allegedly committed by Mike and Brad, they rely upon an early case in which this Court said that “every criminal act which injures the person or property of another is also a civil tort, redressable by the courts.” Hardie-Tynes Manufacturing Co. v. Cruse, 189 Ala. 66, 78, 66 So. 657, 661 (1914). The rule can be more properly stated as follows: Even though an act may constitute a crime, if it also results in injury to the person or property of another, the act may still be the basis of a civil action for damages. However, civil liability will ensue only if the acts complained of violate the legal rights of the plaintiff, constitute a breach of duty owed to the plaintiff, or constitute some cause of action for which relief may be granted. These four counts, which allege only that the criminal acts were committed and that the Martinsons were thereby injured, do not state a cause of action for which relief may be granted, even if liberally construed. Dempsey v. Denman, 442 So.2d 63 (Ala.1983).

Counts Four and Eight charge Brad and Mike with assault and battery and a conspiracy to commit assault and battery. It was not error to direct a verdict on each of these counts. The evidence fails to establish a claim on either theory. See City of Birmingham v. Thompson, 404 So.2d 589 (Ala.1981).

The Martinsons also allege that it was error for the trial court to refuse to give certain instructions on the negligence count regarding Mike’s right to control Brad and the automobile on the night of the accident. After instructing the jury on negligence and wantonness, the trial court stated that it must find a joint venture existed in order to hold Mike liable. It gave this charge on joint venture:

“A joint venture is a special combination of two or more persons undertaking jointly some specific venture for profit, without any actual partnership or corporate designation. In order to be a joint venture there must be a community of interest in the objects or purposes of the undertaking, and an equal right to direct and govern the movements and conduct of each other in respect thereto. The contract need not be expressed, but maybe implied from the conduct of the parties. Something less than a partnership, a business venture undertaken for profit in which they, by virtue of their agreement, share equally in the right to control each other in the movements of the vehicle.”

And, later, in response to a question from the jury, the court stated: “There must be a contract, a common purpose, a community of interest and an equal right to a voice, accompanied by an equal right of control.”

The Martinsons do not contend that these instructions, which are based upon Alabama Pattern Jury Instructions: Civil, § 3.14, are erroneous. Rather, they argue that the trial court erroneously refused to give further instructions on whether Mike had the right to control Brad and the automobile.

The first of the refused charges includes an instruction that the jury, in determining whether Mike had the right of control, might consider § 15-10-7(a)(l), Ala.Code 1975 (1982 Repl.Vol.), which states that “[a] private person may arrest another for any public offense committed in his presence.” The Martinsons argue that Mike had the right and duty to stop Brad and arrest him for the commission of any number of the crimes allegedly committed in his presence. They contend that this is dispositive of whether he had the right to control Brad. We disagree. Under the statute, the state has given Mike permission to make an arrest as a private person, but it certainly does not impose a duty upon him to arrest anyone committing an offense in his presence. Starnes v. State, 30 Ala.App. 156, 2 So.2d 333 (1941). We find no merit to the argument that because Mike had permission to make an arrest that he also had the right to control Brad and the automobile. The statute does not create any special relationship between Mike and Brad which would give Mike a right of control. Any observer who knew that Brad was driving while intoxicated also had permission to make an arrest, but no one proposes that such person has a right to control, or is in a joint venture with, Brad. The trial court properly refused to give this charge.

The other refused instruction regarding a right to control the automobile stated that Mike did not have to have a driver’s license, or know how to drive, in order to be able to exercise control over the driver or the automobile. This instruction is not a statement of law. Whether Mike had a right of control even though he was not a licensed driver is a question of fact to be determined by the jury. The trial court properly refused to give this instruction. A.R.Civ.P., Rule 51.

The Martinsons also contend that the trial court should have charged the jury that, if it found that Mike was either a permissive user or bailee of the car, then he could be held liable for the injuries. Neither of those doctrines would apply to Mike, who was only a passenger in the automobile. Mike did not have the permission and authority of Mr. Cagle, the owner of the vehicle, to use and possess the car. It is clear from the record that there was no delivery of the automobile by Mr. Cagle to Mike, nor a delivery in trust or for a specific purpose. Aerowake Aviation, Inc. v. Winter, 423 So.2d 165 (Ala.1982). The Martinsons were not entitled to these instructions either.

With regard to the liability of Mr. and Mrs. Cagle, the Martinsons contend that the trial court failed to give the jury a complete definition of “incompetence” in connection with the charge on negligent entrustment. The trial court gave the following charge:

“Incompetency, as used in this conjunction, is defined as follows: A want of ability suitable to the task, either as regards natural qualities or experience or deficiency of disposition to use one’s abilities and experience properly. Incompetency connotes the converse of reliability. The term may include something more than physical and mental attributes, it may include want of a qualification generally, such as habitual carelessness, disposition and temperament. For you to find that there was a negligent entrustment to an incompetent, you must find that Mr. Cagle was an incompetent driver. To find that he was an incompetent driver, you take the definition that I have given you of incompetency and apply it to his driving to make that determination.”

They do not contend that this instruction is erroneous, only that it is incomplete because it fails to expressly instruct the jury that, in determining whether Brad was an incompetent driver, they may also consider his youth and other pertinent evidence relating to his character, habits, and activities. In Keller v. Kiedinger, 389 So.2d 129 (Ala.1980), this Court adopted Restatement (Second) of Torts § 390 (1965), as the law in Alabama. Section 390 reads as follows:

“Chattel for Use by Person Known to be Incompetent
“One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.” (Emphasis added.)

This definition does not differ substantially from prior Alabama law as far as the characteristics of an incompetent are concerned. It differs in other respects from pre-Keller Alabama law on the subject of entrustment. However, it does not change significantly the basic definition of who is an incompetent. It was, therefore, not error to fail to give this instruction in addition to, or in place of, the one which was read to the jury.

The judgment appealed from is due to be affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: TORBERT, Chief Justice. JONES, Justice EMBRY, Justice

license: Public Domain

text:
    Mack O. OWENS & Cheryl Diane Owens v. NATIONAL SECURITY OF ALABAMA, INC.
    83-223.
    Supreme Court of Alabama.
    July 20, 1984.

      Jim Zeigler of Zeigler & Carpenter, Montgomery, for appellants.
    W.J. McDaniel and William G. Gantt of McDaniel, Hall, Parsons, Conerly, Scott & Lusk, Birmingham,. and Walter R. Byars and James A. Byram, Jr. of Steiner, Crum & Baker, Montgomery, for appellee.
   TORBERT, Chief Justice.

This is an appeal from summary judgment in favor of defendant National Security of Alabama, Inc. (“National Security”). Plaintiffs filed an action against various third parties for an accident at the plant of Montgomery Food Processors (“MFP”) on December 6, 1981. Owens tripped over a forklift while walking to his place of work through a dark room. Owens was an employee of an independent contractor (“GNC”) performing maintenance work on the MFP premises.

Plaintiffs contend that National Security negligently caused or allowed the lights to be turned off without warning Owens that the lights would be out. National Security moved for summary judgment on three grounds. First, that the one-year statute of limitations barred the action, under Columbia Engineering International, Ltd. v. Espey, 429 So.2d 955 (Ala.1983). Second, that Owens was contributorily negligent. Third, that Owens assumed the risk which led to his injuries. After a hearing, the trial court granted summary judgment on all three grounds. Thereafter, the trial court properly declined to entertain additional evidence from plaintiffs and denied a motion to reconsider. This appeal followed.

The Owenses’ brief succinctly states the facts in this case. Mack Owens drove to the plant and arrived on the premises at approximately 7:00 a.m. He drove into the plant through a gate with a guard station. He presented his pass card to a National Security officer at the guardhouse, and he was allowed to proceed into the plant.

Owens parked his vehicle near a dock at the back of the plant, where he had been instructed to park. He noticed the vehicles of his supervisor and co-workers in their normal places. He met Eddie Mooney, a GNC co-worker. Mr. Mooney asked Owens if he could help in carrying some tools into the plant. Owens agreed to help and picked up his portion of the tools to carry into the plant. He entered the plant with Mr. Mooney.

The portion of the plant entered by Mooney and Owens was illuminated by natural light. The men proceeded through a darkened maintenance room, described by Owens as being about 70 yards long. At first, Owens could see by natural light. The room gradually became darker. When the room became too dark for them to see their way, Owens used a cigarette lighter to light the way. After walking some distance with the lighter, it failed. At this point, Owens had two choices — to go back through a darkened room and be late to work or to continue on the short distance to a door which he knew to have a light switch and also emergency lights behind it. Owens, followed by Mooney, continued to walk cautiously across the darkened room, shuffling his feet rather than stepping. Owens tripped over the blade of a parked forklift and incurred the injuries for which this action was brought.

On motion for summary judgment, there is a heavy burden upon the moving party:

“A party moving for summary judgment has the burden of clearly showing ... that there is an absence of a genuine issue as to any material fact. The moving party must be entitled to ... judgment as a matter of law. Furthermore, all reasonable inferences from the facts are to be viewed most favorably to the non-movant.”

Butler v. Michigan Mutual Insurance Co., 402 So.2d 949, 951 (Ala.1981) (citations omitted). See Day v. Merchants National Bank of Mobile, 431 So.2d 1254, 1256 (Ala.1983); Rule 56 A.R.Civ.P.

By the same token, a summary judgment motion, properly supported as provided for under Rule 56(e), A.R.Civ.P., must be granted “unless the adverse party makes an evidentiary or factual showing in opposition to show that there is a genuine issue of fact for trial.” Butler, 402 So.2d at 951. The non-movant need only establish a scintilla of supporting evidence to avoid summary judgment. White v. White, 431 So.2d 1208, 1209 (Ala.1983).

Before reaching the issue of whether Owens assumed the risk or was contributorily negligent, we must first find some evidence that National Security breached its duty of care by failing to warn Owens that the lights were out. There is no duty to warn when the danger is fully known to the party who was injured. Crawford Johnson & Co. v. Duffner, 279 Ala. 678, 681, 189 So.2d 474, 476 (1966). Similarly, there is no duty to warn of open and obvious defects which the injured party should be aware of in the exercise of reasonable care. Shaw v. City of Lipscomb, 380 So.2d 812, 814 (Ala.1980); Tice v. Tice, 361 So.2d 1051, 1052 (Ala.1978); Hand v. Butts, 289 Ala. 653, 656, 270 So.2d 789, 791 (1972). The law does not require the doing of a useless act.

The evidence is undisputed that Owens knew that he was entering a room which was not lighted. Although the entrance area was somewhat illuminated by natural light, the interior of the cavernous building was obviously dark. Owens admitted using a lighter and shuffling his feet, undisputed facts which prove his knowledge of the dark.conditions. Even without a warning, a reasonable person in the position of Owens would know the room was dark. Darkness is a plain condition which is open and obvious. Reasonable persons do not walk the length of a large, windowless, and unlighted building and not realize that the way is dark.

Owens contends that the darkness, coupled with the position of the forklift, led to a duty to warn. It is important to note that Owens does not argue that National Security was responsible for positioning or moving the forklift. Owens misunderstands the concept of open and obvious dangers. When someone proceeds through an unfamiliar facility in the dark, he has no right to assume that his course is clear. See Yoder v. Greenwald, 246 So.2d 148, 150 (Fla.Dist.Ct.App.1971). This rule is certainly as appropriate as the rule that water is an open and obvious danger, and hence no duty to warn exists even where the water conceals dangers beneath the surface. See generally Alabama Great Southern Railroad Co. v. Green, 276 Ala. 120, 159 So.2d 823 (1964). Under these circumstances, we hold as a matter of law that National Security had no duty to warn Owens that the room was dark.

The dissent cites two cases to support the position that the appreciation of danger from an open and obvious defect is a jury issue. In Furgerson v. Dresser Industries, Inc., 438 So.2d 732 (Ala.1983), plaintiff struck her head on an extension of a gasoline pump. The gasoline pump was one of three pumps. The extensions from the other two pumps were protected by concrete-filled pipes. The third pump was unprotected. This Court found that the evidence was disputed on the issue of whether a reasonable person in Mrs. Fur-gerson’s position would know and appreciate the danger of the unprotected extension. We reversed the defendant’s summary judgment. The present case is materially different from Furgerson, in which the evidence and inferences were mixed. Owens undisputedly knew he was entering a dark building. Moreover, the evidence in this case is such that the trial court is required to find as a matter of law that a reasonable man would be aware of the danger. The condition of total darkness is sufficient to put reasonable people on notice of a substantial risk of concealed hazards. Because of these differences, Fur-gerson does not control this case.

In Kingsberry Homes Corp. v. Ralston, 285 Ala. 600, 235 So.2d 371 (1970), a railroad employee sued for injuries incurred when trapped between a train and the loading dock during coupling operations. Although Ralston knew it was dangerous to be between the cars and the platform, the evidence also showed that Ralston’s “fellow employees were supposed to await a signal from him before proceeding with the coupling and that he had given no signal.” 285 Ala. at 606, 235 So.2d at 376. The Court found that the failure to comply with the warning system constituted at least a scintilla of evidence that Ralston did not anticipate the cars would move. Evidence of the failure to comply with the warning system materially distinguishes Kingsber-ry from the present case. Owens had every reason to anticipate hazards in the dark, while in Kingsberry Ralston could arguably have relied on the warning system.

The dissent’s final concern is about requiring Owens to proceed through an unil-luminated passage. National Security did not require Owens to proceed through the building in issue. Owens alleges only that National Security had the duty to warn him of the darkness. Whether it was unreasonable to allegedly require Owens to proceed through the darkened building is a dispute between Owens and his employer.

Because we find that National Security did not owe a duty to warn Owens that the room was dark, we pretermit any discussion of assumption of the risk, contributory negligence, or the statute of limitations.

AFFIRMED.

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

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

JONES, Justice

(dissenting).

I concur with Justice Embry as to the duty to warn issue, but find it unnecessary to comment on the statute of limitations issue not addressed in the majority opinion.

EMBRY, Justice

(dissenting):

It is incomprehensible to me, how the majority can cavalierly ignoré the fact that the trial court held this action to be barred by the one year statute of limitations. In this case, it cannot be said there is no genuine issue as to any material fact. The original complaint stated a claim against the fictitious defendant denominated as “G,” thusly; “Defendants G, H and I ... negligently caused or allowed lights therein to be cut off without warning or notice to Plaintiff.” National Security was later, by amendment, substituted for G. Under our liberal notice pleadings, which I decry as being too loose, this allegation of negligence would include the charge that defendant “G” negligently failed to warn Owens that the lights were off.

We then pass to the question of National’s duty to warn. Both parties submitted National’s motion for summary judgment upon the depositions of Mack Owens; National in support, Owens in opposition. Owen’s deposition, as correctly stated by him in brief, shows that he was assigned to work in a place at Montgomery Food Processors requiring him to pass through a darkened maintenance area approximately 210 feet long; just a bit over two-thirds the length of a football field. He was unaware, and had not been notified of, a general electrical power outage. When this became apparent to him, he made for a door adjacent to which there was a switch and emergency lights. During this attempt he was caused to fall and be injured by a forklift left in an aisle theretofore known to him to be left free and clear as a passageway. Owens was employed by an independent contractor and was scheduled to work at the time and place of the injury. Surely National was aware of or should have known of these facts and circumstances. It was responsible for plant security. The question of its duty owed to Owens was an issue of fact for resolution by a jury.

It was also for the jury to decide whether Owens had a conscious appreciation of any obvious or open danger presented by the physical conditions making up the entrance-exit way at the time he fell and was injured. In summary, with the forklift blocking the aisle, was the danger presented by darkness so open and obvious as to relieve National of any duty to warn about the lights or move the forklift? See Furgerson v. Dresser Industries, 438 So.2d 732 (Ala.1983).

Also, here, a jury question is presented because a jury could rationally find that Owens could not reasonably expect his path to be blocked in an area where there was a power outage of which there was no forewarning. Further, it could be reasonably concluded that Owens’s conduct in slowing his walk and shuffling his feet when he could no longer see were precautions a prudent person would take.

The duty to warn usually arises from the particular relationship of the parties and under the particular facts of each case. To say, as a matter of law, there was no duty to warn under the facts of this case is a severe test of one’s credulity. Where is there no disputable question of whether darkness of a passageway, having a forklift left to block it, is an open and obvious, consciously appreciated, danger? Unquestionably the question is one of fact for the jury and presents the factual dispute of the duty to warn for resolution by a jury. Where does this fact scenario present an indisputable issue of a danger, consciously appreciated, fully known to Owens?

“Reasonable persons do not walk the length of a large, windowless, and unlighted building and not realize that the way is dark.” So says the majority. I ask, what reasonable person expects to find a place through which he must pass to go to his work place, customarily and usually illuminated, unilluminated without any forewarning?

This is no case for disposition by summary judgment. Negligence actions seldom can be disposed of by summary judgment in light of the scintilla rule which, in spite of my disagreement, is still the rule.

ADAMS, J., concurs.

      . Mack Owens sued in negligence and his wife filed a claim for loss of consortium.

      . National Security moved to dismiss the appeal on the ground that the case below was still pending as to other defendants. The record indicates, however, that at the time of appeal, the case was final as to all served defendants. After filing their notice of appeal, the Owenses were able to serve two more defendants; their previous attempts at service on these defendants had failed, either because the defendant’s name was stated incorrectly or because the summons and complaint were returned unclaimed.
      Under A.R.Civ.P., Rule 4(f), plaintiffs’ appeal from the summary judgment was not premature. "When there are multiple defendants and the summons or other document to be served and complaint has been served on one or more, but not all, of the defendants, the plaintiff may proceed to trial and judgment as to the defendant or defendants on whom process has been served and if the judgment as to defendants who have been served is final in all other respects, it shall be a final judgment.” Rule 4(f), as amended March 1, 1982.
      Under Rule 4(f), service on the other defendants must be completed, not merely attempted, before it can be said the pending action involves other active defendants. Accordingly, we denied the motion to dismiss by order on January 17, 1984.

      . Unfamiliarity can arise when the injured party is in the facility for the first time or when he has knowledge that the equipment and internal layout is frequently rearranged.


author: ALMON, Justice.

text:
    ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, INC. v. Gracie Ann DYER, et al.
    82-681.
    Supreme Court of Alabama.
    June 1, 1984.
    Rehearing Denied July 13, 1984.

      J. Michael Tanner of Almon, McAlister, Ashe, Baccus & Smith, Tuscumbia, for appellant.
    Eddie Beason of Fine & Associates, Rus-sellville, for appellees.
   ALMON, Justice.

This is an appeal from a declaratory judgment which afforded insurance defense and coverage to the estate of the insured, Wayne Dyer, in a wrongful death action brought by the estate of his brother William, based upon the trial court’s finding that Wayne’s shooting of his brother William was neither “expected nor intended from the standpoint of the insured.”

Alabama Farm 'Bureau Mutual Casualty Insurance Company, Inc. (Farm Bureau) issued a homeowner’s policy to Wayne Dyer which contained the following exclusion:

“This policy does not apply:
1. Under Coverage E — Personal Liability and Coverage F — Medical Payments • to Others:
f. to bodily injury or property damage which is either expected or intended from the standpoint of the Insured.”

On the afternoon of August 13, 1980, the insured, Wayne Dyer, and his friend Tommy Long purchased vodka and orange juice and arrived at Wayne’s home to cook on an outdoor grill. Wayne saw his brother William, who lived next door, return from work and asked William to accompany him to check some fish traps. William agreed and walked over to Wayne’s house where another friend, Robert McKinney, subsequently arrived. The four men then checked the fish traps. Upon their return to Wayne’s house, Robert McKinney left to go home.

After McKinney left, Wayne, William, and Tommy Long sat at the picnic table in Wayne’s backyard and began drinking vodka. When William asked Wayne to pass him the vodka, Wayne called his brother a “mooch.” The brothers then began arguing about a water ski which Wayne had previously sold to William for $20.00. William wanted his money back and walked to his house next door to get the water ski to return to Wayne. While William was gone, Long went inside Wayne’s house and began eating dinner. Wayne followed Long into the house but walked to the back of the house alone.

William then returned to Wayne’s house with the water ski. Wayne met his brother in the same room where Long was eating dinner. William asked Wayne to refund his $20.00, and Wayne then laid his billfold on the table and removed a twenty-dollar-bill which he offered to his brother. At this point, William declined to take the money and said that he would talk to Wayne in the morning when they were sober. Wayne then pulled a .38 revolver from his right rear pocket, pointed the gun at his brother, and pulled the trigger. The gun fired, fatally wounding William. Within moments, Wayne placed the gun to his head, pulled the trigger, and died shortly thereafter from the self-inflicted gunshot wound.

Following William’s death, Gracie Ann Dyer, as administratrix of his estate, filed a wrongful death action against the estate of Wayne Dyer. Farm Bureau filed this declaratory judgment action to determine its obligation, if any, to defend and provide coverage to the estate of Wayne, its insured, in the wrongful death action.

At trial without a jury, Tommy Long and Robert McKinney testified that the Dyer brothers had a good relationship and had been laughing and talking on the day in question. Long also testified that he witnessed the incident and remained seated at the dinner table during the altercation because there was nothing unusual about the argument or the fact that Wayne pointed a gun at his brother. Long also testified that Wayne was in a state of shock following his brother’s shooting and instructed him to call an ambulance for his brother William.

An investigator for the Franklin County District Attorney’s Office testified that the weapon which killed both Wayne and William Dyer was a six-shot .38 revolver which had been loaded with three shells in successive chambers, with a spent shell under the hammer, another spent shell to the right of the hammer, and a loaded shell in the next chamber to the right.

Although the appellees attempted to elicit testimony from several witnesses of Wayne’s habit of playing with guns while he had been drinking, the trial court repeatedly sustained Farm Bureau’s objections to the admissibility of such evidence.

At the close of all the testimony, Farm Bureau moved for a directed verdict. The appellees then made an offer of proof, documenting for the record the proffered testimony of Wayne’s habit of partially loading his gun and playing jokes upon his friends while he had been drinking. The trial court, however, never admitted this testimony into evidence. The motion for a directed verdict was denied.

The court held that because Wayne’s shooting of his brother was neither expected nor intended from the standpoint of the insured, Wayne Dyer, Farm Bureau was obligated to defend and provide coverage to Wayne’s estate in the wrongful death action. Farm Bureau’s post-trial motions for a new trial and/or to alter, amend, or vacate the judgment were denied.

The issues presented for review are 1) whether the ore tenus presumption of correctness applies to the trial court’s ruling that the injury which Wayne Dyer inflicted upon his brother William was not “expected or intended from the standpoint of the insured,” Wayne; 2) whether a subjective or objective standard governs the determination of whether the insured’s infliction of bodily injury upon another was expected or intended; and 3) whether the trial court erred in determining that the insured Wayne Dyer neither expected nor intended to injure his brother.

Various presumptions of correctness attend the trial court’s findings of fact. Under the ore tenus rule, when the trial court hears disputed evidence without a jury, its findings of fact will not be disturbed unless clearly erroneous, palpably wrong, or manifestly unjust. Leslie v. Pine Crest Homes, Inc., 388 So.2d 178 (Ala.1980). Conversely, where the trial court’s ruling rests upon a construction of facts indisputably established, this Court indulges no presumption of correctness in favor of the lower court’s ruling. See Alabama Farm Bureau Mut. Casualty Ins. Co. v. Cain, 387 So.2d 195 (Ala.1980); Waters v. Merritt, 277 Ala. 346, 170 So.2d 492 (1964).

Farm Bureau argues that the ore tenus presumption of correctness does not apply to the trial court’s ruling that Wayne’s shooting of his brother William was neither “expected nor intended from the standpoint of the insured” because the ruling involved the construction of the terms of an insurance policy, which is traditionally a mixed question of law and fact, and because all facts surrounding the shooting were uncontroverted.

Although the trial court’s ruling admittedly involved the construction of a standard-form insurance policy exclusion, this Court has consistently held that the question of whether an injury which the insured inflicts upon another person is “expected or intended from the standpoint of the insured” is a question of fact for the jury or judge. Boyd v. Great Central Ins. Co., 401 So.2d 19 (Ala.1981); Smith v. North River Ins. Co., 360 So.2d 313 (Ala.1978); Hartford Fire Ins. Co. v. Blakeney, 340 So.2d 754 (Ala.1976).

Even though the evidence established that Wayne deliberately pulled a gun from his pocket, pointed the gun at his brother, and pulled the trigger, additional evidence admitted at trial of the brothers’ amicable relationship, Long’s indifference to Wayne’s act of aiming his gun at his brother, and Wayne’s suicide immediately following his brother’s death tends to negate the inference that Wayne intended or expected to injure his brother. Thus, the ore tenus presumption of correctness attends the trial court’s ruling on this controverted, factual question.

Farm Bureau argues that even under the ore tenus presumption, the trial court’s ruling on the applicability of this exclusion is clearly erroneous, palpably wrong, and manifestly unjust under the objective standard of review which declares that a “ ‘voluntary injury is intentionally doing some act which reasonable and ordinary prudence would pronounce dangerous.’ ” Hartford Fire Ins. Co. v. Blakeney, 340 So.2d 754, 756 (Ala.1976). Under this standard, Farm Bureau contends that because reasonable, ordinary prudence would certainly pronounce the act of pulling the trigger of a gun aimed within point-blank range at another person “dangerous,” the resulting injury to this person would therefore be “expected or intended from the standpoint of the insured.”

The appellees argue in response that this Court in Blakeney, supra, in actuality employed a primarily subjective standard mandated by the policy language, “from the standpoint of the insured,” and that our more recent pronouncements interpreting this policy exclusion in Smith v. North River Ins. Co., 360 So.2d 313 (Ala.1978), and Boyd v. Great Central Ins. Co., 401 So.2d 19 (Ala.1981), have repudiated the objective standard mentioned in Blakeney in favor of a purely subjective standard. Under this subjective standard, the appel-lees contend that the only relevant inquiry is whether the insured Wayne Dyer specifically intended to injure his brother William when he pulled the trigger of his gun, and that evidence of the brothers’ long-standing amicable relationship combined with Wayne’s concomitant shock and suicide following William’s death supports the trial court’s ruling that Wayne subjectively neither intended nor expected to injure his brother.

Because the preceding arguments posit the horns of a dilemma which this subjective/objective dichotomy creates, we must re-examine the Blakeney decision and its progeny to determine whether a subjective or objective standard governs the interpretation of this policy exclusion.

In Blakeney, this Court upheld a jury verdict in favor of an insured based upon its findings that although the insured Blakeney intentionally pushed another from a doorway, Blakeney never expected or intended that as a result of this act, the other person would suffer serious and extensive brain damage. Although this holding is ostensibly predicated upon a subjective standard, what the insured Blakeney subjectively expected or intended, we nevertheless upheld the following statement contained in the trial court’s oral charge which tends to cast an objective gloss upon the application of the rule:

“ ‘[A] voluntary injury is intentionally doing some act which reasonable and ordinary prudence would pronounce dangerous. * *

Hartford Fire Ins. Co. v. Blakeney, 340 So.2d 754, 756 (Ala.1976).

Although our next decision interpreting this exclusion, Smith v. North River Ins. Co., 360 So.2d 313 (Ala.1978), employs a strictly subjective standard to ascertain whether another’s injury was either “expected or intended from the standpoint of the insured,” this objective standard of “reasonable and ordinary prudence” reappears in a concurrence to our most recent decision interpreting this exclusion, Boyd v. Great Central Ins. Co., 401 So.2d 19, 21 (Ala.1981).

Yet an investigation of the origin of this “reasonable and ordinary prudence” language reveals that this objective standard in actuality has no relevance to the proper interpretation of the “expected or intended from the standpoint of the insured” exclusion.

In Equitable Accident Ins. Co. v. Osborn, 90 Ala. 201, 9 So. 869 (1890), this Court for the first time used the objective language later quoted in Blakeney.

“The phrase — ‘voluntary exposure to unnecessary danger’ — involves the idea of ‘intentionally doing some act which reasonable and ordinary prudence would pronounce dangerous.’ ”

90 Ala. at 206, 9 So. at 870 (citations omitted).

The “voluntary exposure to unnecessary danger” exclusion, however, denies eoverage for the insured’s bodily injury or property damage resulting from the insured’s intentional exposure to a condition which the reasonable person would pronounce dangerous, hence the need for an objective methodology, unlike the “expected or intended from the standpoint of the insured” exclusion, which denies coverage for another person’s bodily injury or property damage which the insured either subjectively expected or intended to inflict upon another.

Because the presumption in tort and criminal law that a person intends the natural and probable consequences of his or her intentional acts has no application to the interpretation of the terms used in the “expected or intended from the standpoint of the insured” policy exclusion, the policy term, “expected or intended injury,” cannot be equated with “foreseeable injury.” See Smith v. North River Ins. Co., 360 So.2d 313, 315 (Ala.1978) (question of intent in personal injury action not the same as question of “expected or intended” injury in policy exclusion).

We therefore hold that a purely subjective standard governs the determination of whether the insured Wayne Dyer either expected or intended to inflict bodily injury upon his brother, William. Under this subjective test, an injury is “intended from the standpoint of the insured” if the insured possessed the specific intent to cause bodily injury to another, whereas an injury is “expected from the standpoint of the insured” if the insured subjectively possessed a high degree of certainty that bodily injury to another would result from his or her act. See Continental Western Ins. Co. v. Toal, 244 N.W.2d 121, 125 (Minn. 1976), for a thorough discussion of the proper standard used to interpret this policy exclusion.

The final issue presented for review is whether the trial court erred in determining that the insured Wayne Dyer neither expected nor intended to injure his brother.

Farm Bureau’s position is predicated upon an objective interpretation of the policy terms “expected or intended from the standpoint of the insured.” Because a purely subjective standard governs the construction of this clause, the record discloses ample evidence to support the trial court’s ruling.

In particular, Tommy Long, the sole eyewitness, testified at trial that the Dyer brothers enjoyed a longstanding amicable relationship which was in no way jeopardized by the trivial argument which precipitated the shootings. In fact, Long was so unconcerned about the argument that he went into the house and started eating supper. Long was not even surprised when Wayne pulled out a gun and pointed it at William:

“Well, it happened so fast. It surprised me that [the gun] went off, is what surprised me. Not particularly pulling the gun. It surprised me that it went off.”

According to Long, after the gun discharged and shot William, Wayne was shocked and stunned and asked Long to call an ambulance for his brother. Soon thereafter, Wayne killed himself. An investigation following the shootings revealed that the gun was only partially loaded during this period.

Based upon all this evidence, the court could reasonably have concluded that Wayne neither expected nor intended that the gun would discharge and wound his brother.

We therefore affirm the judgment.

AFFIRMED.

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

      . See Aetna Life Ins. Co. v. Beasley, 272 Ala. 153, 130 So.2d 178 (1961); United Ins. Co. of America v. Ray, 271 Ala. 543, 125 So.2d- 704 (1960). Subsequent cases used the "voluntary exposure to unnecessary danger” standard of "reasonable and ordinary prudence" to rebut the presumption of "accidental” injury where the insured’s injuries were nevertheless caused by both "external and violent means.” See Emergency Aid Ins. Co. v. Dobbs, 263 Ala. 594, 83 So.2d 335 (1955); Inter-Ocean Casualty Co. v. Foster, 226 Ala. 348, 147 So. 127 (1933).

      . In a similar case, United States Fidelity & Guar. Co. v. Perez, 384 So.2d 904 (Fla.Ct.App.), petition denied, 392 So.2d 1381 (Fla.1980), the Florida Court of Appeals found insurance coverage where the record disclosed that the insured, Maria Otera, did not intend to harm Johnny Perez but only to frighten him when she fired her gun and accidentally, recklessly, and, through culpable negligence, killed him.


author: PER CURIAM.

text:
    Grace FARMER v. Clyde E. FARMER, et al.
    83-472.
    Supreme Court of Alabama.
    July 20, 1984.
    H. Young Dempsey III, Spanish Fort, for appellant.
    T.M. Brantley, Bay Minette, for appel-lees.
   PER CURIAM.

Clyde E. Farmer, Sr., died on April 3, 1981. Letters testamentary for his estate were thereafter awarded to his son, Clyde E. Farmer, Jr., on June 18, 1981.

During his lifetime, Clyde E. Farmer, Sr., owned an interest in a promissory note, payable from Larry and Christine Jordan to “Clyde E. Farmer, or Grace Farmer, or Charles Edgar Farmer” in monthly installments. At the date of Mr. Farmer’s death, the principal balance remaining on the note was $19,645.02.

On March 31, 1982, Clyde E. Farmer, Jr., as executor of the estate of Clyde E. Farmer, Sr., filed a complaint for a declaratory judgment, seeking an interpretation of a portion of the will of Clyde E. Farmer, Sr., as well as a determination as to the rightful payees of two promissory notes, one of which was the “Jordan” note hereinbefore mentioned.

The only aspect of the trial court’s final ruling involved in this appeal is that portion finding that the estate of Clyde E. Farmer, Sr., retained a ½ interest in payments due under the “Jordan” note subsequent to his death.

We affirm.

DECISION

According to Appellant Grace Farmer, the fact that the “Jordan” note was payable on its face to “Clyde E. Farmer, or Grace Farmer, or Charles Edgar Farmer” (emphasis added), readily evidences an intent that the note be held in joint tenancy with right of survivorship. Consequently, she says, upon the death of Clyde E. Farmer, Sr., and because of the subsequent assignment of Charles Edgar Farmer to her of his interest in the “Jordan” note, she should now have full title to any proceeds from the “Jordan” note. We disagree.

Our decision in this case is controlled by Lovett v. Uptain, 450 So.2d 116 (Ala.1984), (affirming Lovett v. Uptain, 450 So.2d 113 (Ala.Civ.App.1983)). The fact that the property in question in Lovett, was a jointly owned certificate of deposit and not a jointly owned promissory note, as in the instant case, does not require a different result in the two cases. Both are personalty; and, as between those contesting title, both situations are controlled by Code 1975, § 35-4-7. As this Court stated in Lovett:

“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.”

The incidence of ownership being the same in this case as in Lovett, (i.e., the names of the joint owners being separated by the word “or,” and with no intention of the parties “stated in the instrument creating [a right of survivorship]”), and the applicable statute being the same, perforce the result is the same. Cf., Dougherty v. Hovater, 447, So.2d 185 (Ala.1984), (holding that "the designation on the stock certificates purporting to create [a tenancy by the entirety] constituted an expression of an intent to create a survivorship estate.”) Consequently, the judgment appealed from is affirmed.

AFFIRMED.

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

      . Grace Farmer is the wife of Clyde E. Farmer, Sr. After the filing of the complaint in this action, Charles Edgar Farmer, grandson of Mr. and Mrs. Clyde E. Farmer, Sr., assigned all of his right, title, and interest in the “Jordan” note to Grace Farmer, his grandmother.


author: SHORES, Justice.

text:
    Louellen GLENN v. Edward WILSON.
    82-1185.
    Supreme Court of Alabama.
    July 23, 1984.
    Rehearing Denied Aug. 24, 1984.
    Joseph W. Adams, Birmingham, for appellant.
    G. Hampton Smith, III, Birmingham, for appellee.
   ON REHEARING EX MERO MOTU

SHORES, Justice.

The original opinion and the dissent issued on May 11, 1984, are withdrawn, and the following is substituted therefor.

This is an appeal from a final order of the Circuit Court of Jefferson County, Birmingham Division, setting aside a decree ordering a public sale of property in a suit for sale for division, because the land lay in the Bessemer Division of Jefferson County.

Appellant Louellen Glenn initiated these proceedings against Appellee Edward Wilson for sale for division of a lot in which Glenn owns a three-fourths interest and Wilson owns a one-fourth interest. The action was filed in the Birmingham Division of Jefferson County Circuit Court. Service of process was ultimately perfected by publication, and a default judgment was entered thereafter against Wilson.

The trial court on January 4, 1983, ordered a sale of the property. The property was sold on March 9, 1983, to Glenn, and a deed was subsequently executed and delivered to her on April 7, 1983. On May 6, 1983, Wilson filed a motion to set aside the sale on grounds that the land was situated in the Bessemer Division of Jefferson County, Alabama. On August 2, 1983, the Circuit Court, Birmingham Division, granted the relief sought. This appeal followed. We affirm.

Pertinent portions of the trial court’s final decree describe the history of the case:

“This action came on to be heard and considered by the Court after notice on motion of the Defendant to set aside all orders entered in this action which sought and resulted in a sale for division.
“The motion raises the issue that the property involved here lies in the Bessemer Division of Jefferson County and that the orders of the Court and the deed of the Register are void for want of jurisdiction. Rule 60(b), Alabama Rules of Civil Procedure.
“The parties have stipulated and agreed that the property involved here, in fact, lies in the Bessemer Division of Jefferson County.
“It appears from the file of this action and the records of the court that a final order was entered in this action on March 28, 1983, confirming a public sale for division wherein the Plaintiff was the successful bidder and purchaser and received the Register’s deed on April 7, 1983, conveying the parties’ interest in the real estate to the Plaintiff. At that time the Plaintiff paid into court the sum of $329.00 having received credit for her ¾ interest and having paid her pro rata share of the costs of court.
“The Defendant (Movant) has not claimed or accepted his share of the purchase price from the Office of the Register, and the monies are now on deposit with that office.
“The Bessemer Division of this Circuit has exclusive jurisdiction of all civil actions involving causes of action arising in the territory comprising the Bessemer Division of the county. Ex parte Central of Georgia Railway Company, 243 Ala. 508, 10 So.2d 746 (1942).”

The trial court correctly held that the original action should have been brought in Bessemer. In United Supply Co. v. Hinton Construction and Development, Inc., 396 So.2d 1047 (Ala.1981), the Court held that a suit to enforce a lien should be filed in the division of the Jefferson County circuit where the land was located. There we said of Local Act No. 213, Section 2, p. 62, Ala. Acts 1919, re-creating the Bessemer Division of the Circuit Court in Jefferson County:

“[It] in effect created two circuit courts within one county. By the Act, the Circuit Court holding in Bessemer was given the same power exercised by the Tenth Judicial Circuit, but it could exercise such power only for actions arising in its territorial boundary. In the instant case, United Supply filed a lien in the probate court of Bessemer, on land located squarely in the Bessemer Division.
“Having determined that the legislature intended to create two circuit courts in Jefferson County, we must reach the inescapable conclusion that the suit to enforce a lien must be filed in the division in which the land lay.”

396 So.2d at 1050.

That decision leads to the conclusion reached by the learned trial judge that the Birmingham Division of the Tenth Judicial Circuit had no authority in an action in rem to enter a judgment affecting real estate located exclusively within the territorial boundaries of the Bessemer Division. See Berry v. Berry, 266 Ala. 252, 95 So.2d 798 (1957); Clark v. Smith, 191 Ala. 166, 67 So. 1000 (1915). Nevertheless, while the court in the Birmingham Division could not enter such a judgment affecting the real estate, it would have been appropriate for the court in the Birmingham Division to transfer the case to the Bessemer Division, in accordance with § 12-11-11, Code 1975, infra. While such a transfer would have been appropriate in this case, we can see no reason to reverse the trial court’s order vacating its prior decree instead.

The appellant’s reliance on Ex parte Central of Georgia Ry. Co., 243 Ala. 508, 10 So.2d 746 (1942), for the proposition that all equity cases arising in the Bessemer Division may be properly brought either in Bessemer or in Birmingham, is misplaced. The discussion of equity cases in that case was based on an amendment to Section 2, p. 62, Local Act No. 213, Ala.Acts 1919 (designated Section 9½, p. 65, Local Act No. 213, Ala.Acts 1919). That section (9V2) did contain a provision that:

“as to equity cases arising in the precincts set forth in section two (2) the complainant may file or bring such cases in the Circuit Court of the Tenth Judicial Circuit holding at Bessemer or in the Circuit Court of the Tenth Circuit holding at Birmingham.”

243 Ala. at 512, 10 So.2d at 749.

Section 9½ was expressly repealed by a general act of September 9, 1927, p. 711, Ala.Acts 1927, and was again repealed by a local act of September 7, 1935, p. 216, Ala. Acts 1935. Why the Court in Central of Georgia did not acknowledge the repeal of that part of the act is unclear. The holding of that case, however, is sound, since Section 9½ had no application to the facts of that case.

We acknowledge that some of the cases are less than clear and seem to confuse venue and jurisdiction by use of the term “territorial jurisdiction.” See C. Cleveland, “Territorial Jurisdiction of the Circuit Court in the Bessemer Cutoff,” Vol. 3, No. 2, Birmingham B. Ass’n Bull. (Summer 1982). However, we are convinced that — except for those cases which by their nature can be adjudicated only in a particular county, such as suits for partition of land, see Clark v. Smith, supra, or suits to enforce a lien on land, see United Supply Co., supra, both of which must be brought in the county where the land lies — suits “arising in” the geographical boundaries of the Bessemer Cutoff but filed in Birmingham (or, vice versa, suits “arising in” the Birmingham Division but filed in Bessemer) are subject to transfer to the proper division pursuant to the provisions of § 12-11-11, Code 1975. That statute, first adopted in 1915, reads as follows:

“Whenever it shall appear to the court that any case filed therein should have been brought in another court in the same county, the court shall make an order transferring the case to the proper court, and the clerk or register shall forthwith certify the pleadings, process, costs and order to the court to which the case is transferred, and the case shall be docketed and proceed in the court to which it is transferred, and the costs accrued in the court in which the case was originally filed shall abide by the result of the case in the court to which transferred.”

The Bessemer Cutoff legislation does not diminish the general jurisdiction of other circuit courts, either in Jefferson or other counties. Therefore, in those Jefferson County cases subject to transfer to the other division pursuant to § 12-11-11, a claim for transfer based on the improper filing may be waived, just as in a suit filed in some other county the parties may waive claims of improper venue.

The judgment of the trial court is affirmed.

ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

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


text:
    SAFECO INSURANCE COMPANIES, A Corporation v. SESSIONS COMPANY, INC., A Corporation.
    82-974.
    Supreme Court of Alabama.
    July 27, 1984.
    John W. Clark, Jr. of Clark & Maddox, Birmingham, for appellant.
    M. Dale Marsh of Cassady, Fuller & Marsh, Enterprise, for appellee.
   ALMON, Justice.

This appeal is from a declaratory judgment which afforded defense and coverage to an insured in a fraud action based upon the court’s finding of an “occurrence” and “property damage” within the meaning of the policy.

Charles Turner is a peanut farmer in Geneva County, Alabama. In the years 1978 and 1979, Turner marketed some or all of his peanuts through a marketing cooperative association known as the Georgia, Florida, Alabama Peanut Association (GFA). GFA has a contract with the Commodity Credit Corporation, a governmental agency which advances loans to farmers who place their peanuts in GFA. The farmers retain title to the peanuts and, upon sale of the commodity, receive a dividend equalling the difference between the profits from the sale and their original loan advance.

On or about September 12, 1980, Turner carried his peanuts to the Geneva, Alabama, buying point of Sessions Company, Inc. (Sessions), a peanut processing corporation. Turner instructed Buddy Ward, a Sessions employee, to place all of his quota peanuts, those which were not already under contract, in GFA. According to Turner, Ward stated that although he would be glad to place Turner’s quota peanuts in GFA, Sessions had the right to buy the peanuts back from GFA for the same price which GFA would pay Turner, plus a small handling fee. Turner stated that if Sessions could in fact buy the peanuts back from GFA, he would sell them directly to Sessions; otherwise Turner would place his peanuts directly in GFA for marketing. According to Turner, he agreed to sell his quota peanuts directly to Sessions in reliance upon Ward’s representations. Following this transaction, Sessions retained possession of the peanuts and mailed a check to Turner covering their surplus price. Sessions, however, failed to place these peanuts in GFA, which, in 1980, paid members a dividend of approximately $978.00 a ton.

Turner filed suit against Sessions in Geneva Circuit Court, alleging that the statement made to him by an agent of Sessions that Sessions could buy his quota peanuts back from GFA constituted either an innocent, reckless, or intentional misrepresentation of material fact upon which Turner detrimentally relied in selling his peanuts directly to Sessions instead of marketing them with GFA and receiving the $978.00 per ton dividend. Turner sought both compensatory damages, in an amount equivalent to the 1980 dividend which he would have received had his quota peanuts been marketed with GFA, and punitive damages.

Prior to September 12, 1980, Safeco Insurance Companies (Safeco) issued a blanket liability insurance policy to Sessions. Sessions duly notified Safeco of the fraud action and requested that Safeco provide defense against and coverage for all claims asserted therein. Although Safeco originally began defending Sessions in the fraud action, it subsequently denied coverage and initiated this declaratory judgment action against Sessions and Turner to determine its obligations, if any, under the policy. Safeco also obtained an injunction against further proceedings in the fraud action pending a declaration of rights under its policy.

The trial court, after hearing testimony in open court, ordered that Safeco afford defense and coverage to Sessions in the fraud action based upon its findings of an “occurrence” and “property damage” within the meaning of the policy. The court also found that no policy exclusions were applicable, because the allegations of fraud, if proven at trial, would preclude title from passing to Sessions.

The policy which Safeco issued to Sessions provided the following coverage:

“The company will pay all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence.” (Emphasis in original.)

Because both sides concede that the fraud action contained no allegations of “bodily injury,” the question of coverage is necessarily confined to the existence of “property damage,” which the policy defines as

“(a) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or (b) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period.” (Emphasis in original.)

Because there was no “physical injury to or destruction of tangible property” alleged in Turner’s complaint, the only possible coverage would fall under the second definition of “property damage”: the “loss of use of tangible property which has not been physically injured or destroyed .... ”

We need not determine whether the allegations of Turner's complaint fall within this second definition of property damage, due to the presence of the following relevant policy exclusions:

“This insurance does not apply ...
“(e) to property damage: (1) to property owned or transported by the insured; ... (3) to property under bailment to the insured (except injury to or destruction of such property arising out of the use of elevators or escalators or to liability assumed under sidetrack agreements) .... ” (Emphasis in original.)

Under this policy, the term ‘bailment’ is further defined as

“a delivery of property by any person to the insured for some purpose beneficial to either the insured or such person or both under a contract, express or implied, for the insured to carry out such purpose and to redeliver such property or otherwise dispose of it as provided.” (Emphasis in original.)

The allegations of Turner’s complaint state that he sold his gross peanuts to Sessions based upon its misrepresentations concerning the GFA. Hence, title to these peanuts passed to Sessions, subject to Turner’s right to rescind the contract, return the money which he received from Sessions, and seek the return of his peanuts. See Glass v. Cook, 257 Ala. 141, 57 So.2d 505 (1952). Yet, because Turner’s complaint affirms the transaction between the parties and seeks only money damages, Sessions is deemed to be the owner of the peanuts, thereby invoking exclusion (e)(1), which precludes defense and coverage for damage to property which the insured owns.

Assuming, however, that the peanut transaction did not amount to a sale with title passing to Sessions, the delivery of the peanuts to Sessions and its taking possession of the commodity with the intent to exercise control over the property in accordance with an agreement between the parties clearly qualifies as a bailment under both Alabama law and the policy definition. See Farmer v. Machine Craft, Inc., 406 So.2d 981 (Ala.Civ.App.1981).

We therefore hold that in the event the ownership exclusion (e)(1) were deemed in-apposite, policy coverage would nevertheless be precluded under the bailment exclusion (e)(3).

The judgment of the circuit court is reversed and the cause remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


text:
    Julia Ann KING v. Kathi REID.
    83-23.
    Supreme Court of Alabama.
    July 27, 1984.

      Sarah S. Frierson of Collins, Galloway & Smith, Mobile, for appellant.
    Beth Marietta, Mobile, for appellee.
   ALMON, Justice.

This is the second appeal of this case. In King v. Reid, 428 So.2d 611 (Ala.1984), this Court held that if equity required that Mrs. King be relieved from her waiver of her homestead rights, “the homestead law would allow her an interest in the property notwithstanding the terms of the will.” Id., at 615. This Court reversed and remanded to enable the trial court to determine whether to grant equitable relief from the waiver. On remand, the trial court held that Mrs. King “relinquished and waived her right to dower and homestead ... by executing a valid written waiver instrument.”

The facts on this appeal are substantially the same as those set out in the previous opinion. The issue before us is whether the trial court correctly applied the law to the facts in refusing to relieve Mrs. King from the waiver.

As in the prior trial, Mrs. King testified that she signed the waiver without reading it or understanding what it was. She testified that she signed it because her husband asked her to and that she did everything he said. There was corroborating evidence indicating that Mr. King was the dominant party in the marriage. Mr. King executed the will on July 5, 1972, the same day Mrs. King signed the waiver. They both signed at the office of a local attorney. Mrs. King testified that neither her husband nor the attorney explained anything to her about what she was signing.

The only evidence contradicting Mrs. King’s testimony was the testimony of the attorney. He had no independent recollection of the occasion, but only testified that under his usual practice, he would not have instructed her to sign the waiver without explaining its nature and effect. Mrs. Reid did testify that her father told her he wanted his daughters, not his wife, to have the property, but this does not contradict Mrs. King’s testimony that he induced her to sign the waiver without knowledge of its contents or import.

A waiver of homestead rights may be valid, but

“the rule requires that the consideration be adequate, and the entire transaction must be fair, just and equitable, from the wife’s view, or that it was freely and voluntarily entered into with competent independent advice and full knowledge of her interest in the estate and its approximate value, and that the husband or his representatives have the burden in that respect.” (Emphasis added.)

Merchants’ National Bank of Mobile v. Hubbard, 222 Ala. 518, 524, 133 So. 723, 738 (1931); King v. Reid, supra; Allison v. Stevens, 269 Ala. 288, 112 So.2d 451 (1959); Norrell v. Thompson, 252 Ala. 603, 42 So.2d 461 (1949); McCollough v. McCollough, 237 Ala. 77, 185 So. 417 (1938); Dutton v. Swann, 219 Ala. 425,122 So. 636 (1929); Richter v. Richter, 180 Ala. 218, 60 So. 880 (1913).

As the Court noted in Merchants’ National Bank of Mobile, “[a]n unadvised election is upon the same basis as an election procured by fraud.” 222 Ala. at 525, 133 So. at 729. The above-stated rule arises from the recognition that the relationship of confidence and trust between spouses requires that a waiver such as the one executed by Mrs. King be exercised independent of the dominance of the other spouse. The favor with which the law looks upon marital property rights places the burden upon those seeking to take under a waiver to demonstrate that the waiver was validly made.

The evidence of record does not support a finding that the waiver was validly executed. Mrs. King’s testimony to the effect that she did not execute the waiver knowingly, freely, and voluntarily was essentially uncontradicted. The relief sought is equitable in nature, and equity grants relief in the appropriate circumstances, such as those shown in the record before us.

Mrs. Reid brought this action for unlawful detainer. The trial court, finding the waiver of homestead rights valid, granted her “the immediate right of possession to said premises located at 3001 East Riverside Drive, Mobile, Alabama.” In view of our holding that the evidence does not support the finding of validity, this judgment must be set aside.

The judgment of the trial court is reversed and the cause remanded.

REVERSED AND REMANDED.

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


author: ADAMS, Justice.

text:
    Mrs. Weaver POSS a/k/a Ruby Poss v. FRANKLIN FEDERAL SAVINGS & LOAN ASSOCIATION OF RUSSELLVILLE, ALABAMA, and Raymond Vernon.
    83-261.
    Supreme Court of Alabama.
    July 27, 1984.
    Roger H. Bedford of Bedford, Bedford & Rogers, Russellville, for appellant.
    Dave Beuoy, Russellville, for appellees.
   ADAMS, Justice.

This is an appeal from the Franklin County Circuit Court’s judgment in a statutory interpleader action brought by Franklin Federal Savings and Loan Association. That judgment placed ownership of a certificate of deposit in appellee Raymond Vernon. Appellant, Ruby Poss, asserts his claim of the certificate of deposit, claiming that Raymond Vernon acquired his claim by exercising undue influence over the original purchaser, Oscar O. Poss.

The pertinent facts of this case are accurately stated in appellant’s brief. They are as follows:

On January 5, 1974, Oscar O. Poss, now deceased, purchased a certificate of deposit from the plaintiff in the amount of $17,254.66, being certificate Number 1916. On the certificate as issued, ownership was shown as: “O.O. Poss or (in the case of death, pay equally to Ada Mae James, Lucille Vernon and Weaver Poss). Ruby Poss, the appellant, is the widow of Weaver Poss. Mrs. Poss testified, without dispute, that she was present on January 5, 1974, and took 0.0. Poss to Franklin Federal to purchase the certificate of deposit. She testified that Mr. Poss was present when she signed the signature card, which showed her as a joint tenant with right of survivorship since her husband was deceased at this time. Her name was also placed on the ledger card as a joint tenant.
Thereafter, defendant Raymond Vernon obtained a document dated November 12, 1976, and presented it to Franklin Federal, asking them to change the ownership of the certificate of deposit. A secretary acted upon this request, by drawing a line through the four names originally on the savings certificate and adding the name Raymond Vernon, and returned the certificate to Mr. Vernon. She also drew lines through the names of the individuals shown on the account ledger card (including the name of appellant), and typed in the name Raymond Vernon. This was done on November 15, 1976. The original signature card was never changed and remained in the name of appellant, her two sisters-in-law and Mr. Poss as joint tenants with right of survivorship up until the time of the death of 0.0. Poss.
The defendant-appellee, Raymond Vernon, testified that he was a grandson of 0.0. Poss. His grandfather had been confined to a nursing home for approximately two months prior to his death, but had been sick for the last four or five years. He testified that he prepared the document of November 12, 1976, and that he was present when it was signed. His grandfather could neither read nor write, being only able to make a mark for his signature. After obtaining the document, he took it to Phenix Federal (the successor in interest to Franklin Federal), along with the savings certificate and attempted to have it transferred into his name. The changes were made as outlined above.

The appellant presents three issues for our review. They are:

1. Did the court err in striking appellant’s demand for a jury trial?
2. Did the court err in failing to find undue influence exercised by appellee Raymond Vernon in the attempted transfer of ownership in the savings certificate?
3. Was the attempted transfer of ownership in the savings certificate sufficient, considering the applicable rules and regulations covering such transfers?

Because our decision on issue one is dis-positive of this appeal, we pretermit discussion of issues two and three. The case must be remanded for a proceeding consistent with this opinion.

Ruby Poss and Raymond Vernon both direct us to the case of McDonald v. McDonald, 212 Ala. 137, 102 So. 38 (1924), a case where this court stated that no right to a trial by jury existed in a statutory interpleader action. In McDonald, there was no issue as to any material fact; therefore, a jury trial was not required, and the trial court resolved the issue as a matter of law.

Appellee Raymond Vernon cites language from McDonald to support his proposition that appellant has no right to a trial by jury in this case. Appellant attempts to distinguish the two cases by saying that in McDonald there was no dispute over any facts, while in the instant case, whether Raymond Vernon unduly influenced 0.0. Poss was a hotly contested issue. We agree with appellant that McDonald is of little precedential value here for the following reasons.

McDonald was decided prior to the adoption of the Alabama Rules of Civil Procedure. Alabama’s Rule 22 addresses inter-pleader, but does not discuss the right to a trial by jury in interpleader actions. The Alabama Rule is patterned after Rule 22, Federal Rules of Civil Procedure, and the federal courts have consistently construed the rule to include trial by a jury. In Jefferson Standard Insurance Company v. Craven, 365 F.Supp. 861 (M.D.Pa.1973), the court denied a motion to strike the jury trial demand. That case is very similar to the case at bar. In the Jefferson Standard case, an insurance company brought an action in interpleader against a mother and her two sons to determine who was entitled to the insurance proceeds from her husband’s life insurance policies. The mother demanded a jury trial, claiming that her sons had exerted undue influence over their father and thereby induced him to make them the beneficiaries of the policies. The sons filed a motion to strike the jury demand, which the court denied, recognizing that:

Most recently, a heightened appreciation of the function of the Federal Rules and of the significance of the constitutional right to jury trial has convinced more courts that a claimant should not be deprived of that right on such issues as would have been properly triable by jury had the claimant asserted his rights against the stakeholder in an ordinary civil proceeding .... In the light of legal history, it would be anomalous to hold that a necessary concomitant of such procedural reform — reform which has remedied the very causes for withdrawal of interpleader, historically, from the law courts — is a sacrifice of the right to a jury determination of issues which are fit for resolution by a jury ....

365 F.Supp. at 864, quoting 3A J. Moore, Moore’s Federal Practice § 22.14[4] at 3114-15. The court, speaking directly to cases where interpleader is used, went on to say:

Quite apart from history, statutory and Rule interpleader should be viewed primarily and simply as devices for the joinder of parties and claims which justice and judicial economy demand be tried together. This should work no sacrifice of a jury right available were the causes to be tried separately.
Cf. 5 Couch on Insurance 2d § 28:105; 18 Couch on Insurance 2d § 74:253; Beacon Theaters, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959).

Id.

The Court of Civil Appeals, in Poston v. Gaddis, follows the rationale set forth in Jefferson Standard, and states:

Under our new rules of practice and procedure it will not be unusual for the court to be trying equitable issues and legal issues in the same action. The court in most instances decides the first without the assistance of a jury. A jury, if requested must try the latter.

335 So.2d 165 (Ala.Civ.App.), cert. denied, 335 So.2d 169 (Ala.1979). This reasoning is also followed by this court in Finance, Inv. and Rediscount Co. v. Wells, 409 S.2d 1341 (Ala.1982). In his Federal Practice treatise, Professor Moore separates an in-terpleader proceeding into two stages: first, the determination of whether the stakeholder has met the prerequisites of the interpleader statute or rule, which the court decides, and second, the resolution of any disputed legal issues of the claimants, which the jury should decide. 3A J. Moore, Moore’s Federal Practice § 22.14[4] (3rd ed. 1984).

It is clear from the above cited cases and treatise that the appellant’s demand for a jury trial, to determine the presence of undue influence in the dealings of Raymond Vernon and the deceased, O.O. Poss, should have been granted. We, therefore, deem it necessary to remand the case to the trial court to allow a jury to resolve the undue influence issue.

For the above-stated reasons, the judgment is reversed and the case is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


text:
    Arthur Brennan MALLOY v. Thomas C. SULLIVAN.
    83-463.
    Supreme Court of Alabama.
    July 27, 1984.
    Arthur Brennan Malloy, pro se.
    John M. Milling, Jr. of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee.
   ALMON, Justice.

This is the fourth appeal of this case. Malloy v. Sullivan, 387 So.2d 169 (Ala.1980); Malloy v. Sullivan, 415 So.2d 1059 (Ala.1982); Malloy v. Sullivan, 431 So.2d 514 (Ala.1983). Malloy is attempting to make a collateral attack on the judgment affirmed in the second appeal. The third appeal also involved an attack on the original judgment, in that case under Rule 60(b), A.R.Civ.P. In this case Malloy denominates his petition for relief an “independent proceeding against judgment.”

The attempted distinction between a Rule 60(b) motion and an independent proceeding against judgment is immaterial. Mal-loy cannot bring a second collateral attack on the same judgment. Skillman v. First State Bank of Altoona, 341 So.2d 691 (Ala.1977).

Moreover, his attack herein provides no grounds for setting aside the judgment. He argues that the trial court did not inform him before the summary judgment hearing that Rule 56(f), A.R.Civ.P., contained a “savings clause” under which he could have opposed Sullivan’s summary judgment motion without filing his own affidavits. Malloy misreads Rule 56(f): it does require an affidavit, and only protects the party opposing the motion if he states reasons why he cannot present essential facts. Malloy presented no affidavit in opposition to the motion and its supporting affidavit.

Malloy argues that he was denied the right to counsel. He confuses the provision of the Constitution of Alabama of 1901, Art. I, § 10, “[tjhat no person shall be barred from prosecuting or defending before any tribunal in this state, by himself or counsel, any civil cause to which he is a party,” with the U.S. Constitution’s Sixth Amendment right to counsel in defense of criminal prosecutions. Malloy was not barred from presenting his case, whether pro se or by retained counsel, but he had no right to court-appointed counsel.

Finally, Malloy argues bias of the trial court and insufficiency of the affidavit in support of the motion for summary judgment. These matters were resolved in his prior challenges and are not subject to further attack.

The judgment of the trial court, denying Malloy’s petition for relief, is affirmed.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    John T. CRANE and Ellaweise T. Crane v. Andrew HARVELLA and Doris Harvella.
    Civ. 3569.
    Court of Civil Appeals of Alabama.
    July 20, 1983.
    Rehearing Denied Aug. 24, 1983.

      R.B. Jones, Birmingham and Fred Blan-ton, Fultondale, for appellants.
    Douglas Corretti of Corretti & Newsom, Birmingham, for appellees.
   BRADLEY, Judge.

On May 22, 1980 Andrew and Doris Harvella filed a complaint in the Jefferson County Circuit Court against John T. and Ellaweise T. Crane. The plaintiffs alleged in their complaint that in 1968 they acquired a statutory warranty deed from Paul and Frances Ward to two parcels of land and that the Cranes, without holding any interest in the two parcels, erected a fence along the first parcel of the property and along a portion of the second parcel. The two parcels are described in the complaint as:

“Lots 1, 2, and 3, Block 1, W.D. Reed Survey of Brake, Jefferson County, Alabama; and ...
“A triangular parcel of land which is part of the South Half of the Southeast Quarter of Section 23, Township 14, Range 3, Jefferson County, Alabama, particularly described as follows: Begin where the South line crosses the North line of the Louisville & Nashville Railroad Company, run thence Northerly along the Railroad Company line to the north line of Watts Railroad, thence along said line to within fifteen (15) feet of the center of the South right of way line of the Louisville & Nashville Railroad, thence run southeasterly to the point of beginning, situated in Jefferson County, Alabama.”

The Harvellas asked the court for an injunction against the maintenance of the fence, a judgment for ejectment, and damages for trespass.

The defendants, John T. and Ellaweise T. Crane, requested a jury trial and alleged in their amended answer that they have title to both parcels of property. The Cranes alleged that they acquired title to the first parcel by a deed from Sylvester Parks on March 5, 1965 and title to the second parcel by a deed from Edward and Gladys Ron-ning dated August 5, 1963. The Cranes further alleged that they have been in actual possession of the property and claim the property by adverse possession. In a subsequent amendment the defendants alleged that the plaintiffs’ action should be barred by the doctrine of laches.

A trial of the issues began on August 30, 1982 and on September 8, 1982 the jury returned verdicts in favor of the Harvellas for the two parcels of property, i.e. they were the owners of the property in question. The jury awarded $11 in damages to the plaintiffs. On September 9, 1982 the court entered a judgment which followed the jury verdict. The defendants filed a motion for new trial and it was denied.

The Cranes appeal and raise two issues. The first issue raised is whether the trial court erred by denying the motion for new trial based on the ground that the evidence did not support the jury’s verdict.

As to the first issue, we note that a reviewing court will not reverse a jury’s verdict unless the evidence is so preponderant against the verdict as to clearly indicate that it was wrong and unjust. Cecil Crews Chevrolet-Oldsmobile, Inc. v. Williams, 394 So.2d 912 (Ala.1981). Moreover, the correctness of a jury verdict is strengthened by the refusal of the trial court to grant a new trial. Lewis v. Ritch, 417 So.2d 210 (Ala.Civ.App.1982).

The Cranes assert that a plaintiff in ejectment must recover on the strength of his own title, not on the weakness of defendant’s title. Ray v. Fowler, 265 Ala. 65, 89 So.2d 573 (1956). The defendants state that the survey of the Town of Brake, which is referred to in the deed to one of the two parcels involved in the suit, was not recorded. They argue that since the survey was never recorded, the Harvellas acquired nothing by conveyance to them of “Lots 1, 2, and 3, Town of Brake.” In other words the Harvellas did not have title to the property in question.

We disagree with the Cranes’ contention. If the deed, as in this case, “refers to a map or survey so it can be identified, it should be considered as part of the deed.” Nixon v. City of Anniston, 219 Ala. 219, 121 So. 514 (1929). Moreover, if the deed refers with certainty to a particular map, parol evidence may be received to identify the map notwithstanding it may not have been adopted as an official map. Nixon v. City of Anniston, supra. Testimony given at trial establishes that the map referred to in the deed was made a part of the tax assessor’s records, thus identifying the map with a degree of certainty and definitiveness. Such was sufficient to permit the jury to consider the map as part of the deed to the plaintiffs.

We also note that ample evidence was presented for a finding that plaintiffs had title to the land according to section 6-5-200, Code 1975, dealing with adverse possession. The trial court did not err by denying defendants’ motion for new trial. There is ample evidence to support the verdict of the jury that the Harvellas were the owners of the property in question and that the Cranes should be ejected therefrom.

The defendants’ second issue is whether the trial court erred by denying the motion for new trial based upon the ground that the court refused to give the following requested jury charge:

“I charge you ladies and gentlemen of the jury that if an adjoining owner erects a building on his property that encroaches on the land of another, through ignorance or mistake as to the boundary between the tracts of land, and maintains his building thus for ten (10) years or more without opposition from the true owner, a title by prescription is conferred on him to that land encroached on that is good as against the former owner.”

The defendants presented testimony showing that a shed and garage belonging to them encroached on the plaintiffs’ property and had done so for many years. They argue that based on this evidence the jury could have returned a verdict for adverse possession involving less than the totality of the two parcels.

In the order denying the motion for new trial, the court stated:

“In respect to the grounds of the said motion as they relate to a garage and shed, it appears now as it appeared prior to and at the time of trial, that at no time have the Defendants filed their suggestion in writing that the action or any part of it arose from a boundary line dispute describing therein the location of the true boundary line. § 6-6-285, Code of Alabama 1975. Furthermore, there was no evidence presented of a boundary line encompassing the averred garage and shed from which the jury could have based a verdict finding for the Defendants on a claim of adverse possession to less than the entirety of the parcel of land involved. Such being the case, the Court concludes that there was no issue to appropriately place before the jury in respect to the averred garage and shed.”

As pointed out in its judgment, the trial court found that the defendants had not filed a suggestion that the action arose from a boundary line dispute, nor had evidence been presented showing a boundary line that included the garage and shed so that the jury could find for the defendants on a claim of adverse possession. For these reasons the trial court held that no issue could appropriately be placed before the jury as to the garage and shed. We agree and hold that the trial court did not err by refusing to give the requested jury charge.

This case is affirmed.

AFFIRMED.

WRIGHT, P.J., and HOLMES, J., concur.


text:
    Ex parte John T. CRANE and Ellaweise T. Crane. (In re John T. CRANE and Ellaweise T. Crane v. Andrew HARVELLA and Doris Harvella).
    82-1201.
    Supreme Court of Alabama.
    July 13, 1984.
    R.B. Jones, Birmingham, and Fred Blan-ton, Fultondale, for petitioners.
    Douglas Corretti of Corretti & Newsom, Birmingham, for respondents.
   PER CURIAM.

Writ quashed as improvidently granted.

In quashing the writ of certiorari, this Court does not wish to be understood as approving all of the reasons or statements of law or fact regarding the reference in the deed to the unrecorded and apparently non-existent survey. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

We note, however, that the Court of Civil Appeals, 455 So.2d 13, found that there is ample evidence to support title in the plaintiffs by adverse possession. This finding is not challenged in this Court.

WRIT QUASHED AS' IMPROVIDENTLY GRANTED.

All the Justices concur.


text:
    Harry J. COUGHLIN, Jr. v. STATE of Alabama; Board of Equalization of Jefferson County.
    Civ. 3960.
    Court of Civil Appeals of Alabama.
    Nov. 16, 1983.
    As Corrected on Denial of Rehearing Dec. 14, 1983.
    Harry J. Coughlin, Jr., Birmingham, pro se.
    No brief for appellee.
   BRADLEY, Judge.

Harry J. Coughlin, Jr. (appellant) owns land in Jefferson County. The State of Alabama, through the Jefferson County Board of Equalization and Adjustment, reappraised Coughlin’s land from the old market value of $1,870 to the new market value of $13,320.

Mr. Coughlin received notice of the Jefferson County Board of Equalization’s final decision fixing the assessed value of his property on February 16, 1983. On March 15,1983 Coughlin filed a notice of appeal in circuit court from the board’s final decision. In support of his notice of appeal, Coughlin tendered to the clerk of the circuit court a cash bond in the amount of $218.98, which was equal to double the amount of taxes due. Coughlin also requested that the cash be placed in an interest bearing account. The clerk refused to accept the cash bond.

The board of equalization moved that the appeal be dismissed because it had not been perfected in accordance with section 40-3-25, Code 1975. After a hearing the motion to dismiss was granted. Coughlin appealed to the supreme court in accordance with section 40-3-25, Code 1975. The supreme court transferred the case to this court for decision. See Kimberly-Clark Cory. v. Eagerton, 433 So.2d 452 (Ala.1983).

The dispositive issue here is whether the trial court properly dismissed Coughlin’s appeal.

Section 40-3-25, Code 1975, provides in part as follows:

“All appeals from the rulings of the board of equalization fixing value of property shall be taken within 30 days after the final decision of said board fixing the assessed valuation as provided in this chapter. The taxpayer shall file notice of said appeal with the secretary of the board of equalization and with clerk of the circuit court and shall file bond to be filed with and approved by the clerk of the circuit court, conditioned to pay all costs.... When an appeal is taken, the taxpayer shall pay the taxes due as fixed for assessment for the preceding tax year before the same becomes delinquent; and, upon failure to do so, the court upon motion ex mero motu must dismiss the appeal, unless at the time of taking the appeal the taxpayer has executed a supersedeas bond with sufficient sureties to be approved by the clerk of the circuit court in double the amount of taxes_” (Emphasis added.)

The rule is that the right to appeal in a tax proceeding is a right conferred by statute and must be exercised in the manner and within the time required by the statute. Denson v. First National Bank of Birmingham, 276 Ala. 146, 159 So.2d 849 (1964).

An appeal from the decision of the board of equalization to the circuit court is accomplished by the taxpayer filing a notice of appeal within thirty days of the board’s final decision and paying the taxes due for the preceding tax year before they become delinquent. Upon the failure to pay the taxes, the circuit court must dismiss the appeal unless at the time of taking the appeal the taxpayer has executed a super-sedeas bond with sufficient sureties to be approved by the circuit court in double the amount of taxes due. § 40-3-25, Code 1975; State v. Golden, 283 Ala. 706, 220 So.2d 893 (1969).

At the time Coughlin filed notice of appeal from the Board’s final decision, he had not paid the taxes due and he did not file a supersedeas bond in double the amount of taxes due. The failure by Coughlin to comply with section 40-3-25, Code 1975, mandated a dismissal of his appeal by the circuit court. State v. Golden, supra.

Coughlin attempted to post a cash bond in double the amount of the taxes due with a caveat that the clerk deposit the money in an interest bearing account. The clerk refused to accept the bond offered by the taxpayer. Since the bond tendered by the taxpayer did-not meet the requirements of section 40-3-25, the clerk properly refused to accept the bond.

The judgment of the circuit court is affirmed.

AFFIRMED.

WRIGHT, P.J., and HOLMES, J., concur.