text:
    Sherry DICKEY v. ALABAMA FARM BUREAU MUTUAL INSURANCE COMPANY.
    82-1300.
    Supreme Court of Alabama.
    Feb. 24, 1984.
    J. William Thomason, Bessemer, for appellant.
    W.J. McDaniel and Joseph W. Buffington of McDaniel, Hall, Parsons, Conerly, Scott & Lusk, Birmingham, and James B. Kierce, Jr. of Stone, Patton, Kierce & Clifton, Bessemer, for appellee.
   SHORES, Justice.

Sherry Dickey, plaintiff below, appeals from the entry of summary judgment in favor of Alabama Farm Bureau Mutual Insurance Company on her claim for damages resulting from the insurance company’s alleged bad faith refusal to pay for repairs to her automobile. We affirm.

Dickey filed this action against Fred Atchinson and his insurer, Alabama Farm Bureau. In count one of her complaint, she claimed that Atchinson negligently or wantonly caused an automobile accident in which she was injured. Judgment by consent was entered in favor of Dickey on this claim, and that judgment is not involved in this appeal. In count two, she claimed that Alabama Farm Bureau, in bad faith, breached an oral contract to repair her car and provide her with a rental car. The facts, as alleged by Dickey in her affidavit, are that Alabama Farm Bureau orally promised to pay the reasonable cost of repairs to her automobile damaged in the accident with its insured; that she had her car repaired; and that Alabama Farm Bureau then refused to pay for the repairs unless Dickey signed a general release, releasing Alabama Farm Bureau from any additional claim for property damage and personal injury. Dickey did not have a policy of insurance with Alabama Farm Bureau at any time relevant to this action.

Alabama Farm Bureau moved for summary judgment. The trial court found no genuine issue of material fact and granted the motion on the ground that the tort of bad faith refusal to pay will not lie in Alabama in cases other than insurance policy claims. It cited Kennedy Electric Co. v. Moore-Handley, Inc., 437 So.2d 76 (Ala.1983), as support. In that case, Justice Adams wrote:

“III. Dismissal of Bad Faith Claim
“The plaintiffs next contention is that the court erred to reversal by dismissing the second cause of action (based on a breach of a good faith obligation). The plaintiff argues that this court should extend to the area of general contract law the tort of bad faith that has already been recognized in the context of insurance policy eases. Prudential Insurance Co. of America v. Coleman, 428 So.2d 593 (1983); Chavers v. National Security Fire and Casualty Co., 405 So.2d 1 (Ala.1981). Although every contract does imply good faith and fair dealing (see § 7-1-203, Code 1975), it does not carry with it the duty imposed by law which we have found in the context of insurance cases. We are not prepared to extend the tort of bad faith beyond the area of insurance policy cases at this time. See Brown-Marx Associates, Ltd. v. Emigrant Savings Bank, 527 F.Supp. 277 (N.D.Ala.1981).”

437 So.2d at 81. The appellant concedes that, unless this case is overruled, the judgment of the trial court is correct. We are not willing to overrule Kennedy Electric.

There was no policy of insurance issued by Alabama Farm Bureau to Dickey at the time of the accident or at any time thereafter. This Court has held repeatedly that the plaintiff in a bad faith case has the burden of proving that “an insurance contract existed between the parties [plaintiff/insured, defendant/insurer] and a breach thereof by the defendant.” National Security Fire & Casualty Co. v. Bowen, 417 So.2d 179, 183 (Ala.1982), cited in McLaughlin v. Alabama Farm Bureau Mutual Casualty Insurance Co., 437 So.2d 86 (Ala.1983), and Cincinnati Insurance Co. v. Little, 443 So.2d 891 (Ala.1983). A mere offer by an insurance company to pay damages to one, not its insured, does not make a case an insurance policy case for purposes of the tort of bad faith refusal to pay. The “third party” cases also require a relationship of insured/insurer between the plaintiff and defendant. In those cases, if the insurance company promises its insured that it will pay a third party’s claim and then fails to use due care to do so, subjecting the insured to additional liability, the insured has a tort action against its insurance company either for negligence or for bad faith refusal to pay. Waters v. American Cas. Co. of Reading, 261 Ala. 252, 73 So.2d 524 (1954). This is not such a case.

It is undisputed that Dickey was not insured by Alabama Farm Bureau. The insurance company is entitled to judgment in its favor as a matter of law. The trial court’s entry of summary judgment in favor of Alabama Farm Bureau was proper and is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Ex parte Billy Edward CLEMENTS. (Re Billy Edward CLEMENTS, alias v. STATE).
    83-34.
    Supreme Court of Alabama.
    Feb. 24, 1984.
    Myron K. Allenstein, Gadsden, for petitioner.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for respondent.
   BEATTY, Justice.

The petitioner was indicted for the offense of robbery in the first degree. Prior to his trial, he offered to stipulate to the introduction into evidence of a polygraph examination. The State refused to stipulate. Following a trial, the defendant was convicted and sentenced. He appealed the judgment of conviction to the Court of Criminal Appeals which affirmed without opinion. 438 So.2d 769. Petitioner appropriately utilized Rule 39(k), Alabama Rules of Appellate Procedure (A.R.A.P.), to supply to that court an additional statement of facts. His application for a rehearing was denied. 443 So.2d 66. This Court granted a writ of certiorari to resolve two questions posed by the petitioner: (1) Whether the trial court, in the admission of certain evidence discussed below, erred to reversal in violating the business reports exception of the rule against hearsay; and (2) Whether the decision of the State to refuse to stipulate to the admission of the proffered polygraph examination constituted reversible error.

I.

The facts furnished under Rule 39(k), and verified by the transcript of the evidence, disclose the following exchanges during the examination of one Angela Golden, cashier of the service station allegedly robbed. That examination was being conducted to determine the amount of money missing after the robbery:

“Q. Do you know how much money was in those money bags?
“A. No, I don’t know how much was all in there.
“Q. Okay, $1,318.22, does that sound about—
“MR. ALLENSTEIN: We object to the leading, now, Judge.
“THE COURT: Don’t lead.
“Q. Later, did you learn how much money was in the—
“A. Oh,—
“MR. ALLENSTEIN: We object to that, that would be hearsay, what she learned.
“ASSISTANT DISTRICT ATTORNEY HART: Your Honor, she worked there, she was the cashier on duty that night.
“MR. ALLENSTEIN: She would have to know by personal knowledge or somebody else would have to be brought in—
“THE COURT: I will sustain it. You determine how she learned. You can lay that.
“Q. Did you later learn how much money was in the two money bags?
“MR. ALLENSTEIN: Let me ask her on voir dire, Your Honor.
“THE COURT: All right.
“VOIR DIRE EXAMINATION BY MR. ALLENSTEIN:
“Q. Did somebody tell you later on how much money was in the bags?
“A. Yes, sir.
“MR. ALLENSTEIN: I object to her answering the question. Hearsay.
“THE COURT: All right.
“(Whereupon, Assistant District Attorney Hart continued his direct examination.)
“Q. Did you ever see any store record on how much money was in the two money bags that night?
“A. Yes, sir.
“Q. And did you help keep the store records when you were there as far as—
“A. No, not — huh uh. Not pertaining to the money, and all of that.
“Q. But, you later saw store records — did the store records you saw show how much money was in the two money bags?
“A. Yes, sir, after they took inventory.
“ASSISTANT DISTRICT ATTORNEY HART: Your Honor, based on that, since she was a store employee we submit that she did know enough about the value of the money bags to testify about it.
“MR. ALLENSTEIN: There would be higher and better evidence. That would be the store record, and they have got to be properly qualified as store records. She doesn’t keep them and they are not under her control.
“ASSISTANT DISTRICT ATTORNEY MARTIN: Your Honor, may I ask a question on voir dire? It might clear it up.
“THE COURT: Yes, sir.
“VOIR DIRE EXAMINATION BY ASSISTANT DISTRICT ATTORNEY MARTIN:
“Q. Were you the only employee in charge of that station at the time?
“A. Yes, sir.
“Q. Okay, and everything in the store was in your care at that time?
“A. Yes, sir.
“(Whereupon, Assistant District Attorney Hart continued his direct examination.)
“Q. Did the store records reflect that 1800 and—
“MR. ALLENSTEIN: We object to leading again, Your Honor. Again, the higher and better evidence would be the records.
“THE COURT: I sustain as to leading.
“Q. Mrs. Golden, did the store records reflect — what did the store records reflect—
“MR. ALLENSTEIN: We are going to object to that. There is still higher and better evidence, the store records.
“THE COURT: I believe she testified that she was the keeper of the records. So, overruled.
“Q. What did the store records reflect about how much money was taken that night?
“A. It was over $1300 — ”

This testimony clearly established that the witness had no personal knowledge of the amount of the service station’s loss. Resort was had, therefore, to the fact that the witness had seen store records which disclosed that loss, and thus her testimony as to what those records contained was admitted, over objection, without production of the records themselves.

In Gamble, McElroy’s Alabama Evidence § 254.01(3) (3d ed. 1977), the pertinent rule on admitting the contents of business records is succinctly stated:

“Testimony by any witness, frequently the custodian of the record, that the document now exhibited to him is a record of the business; that he knows the method (i.e., the standard operating procedure) used in the business of making records of the kind now exhibited to him; and that it was the regular practice of the business to make records of such kind and to make them at the time of the event recorded or within such specified period thereafter as could be found by the trier of the fact to be reasonable, is a sufficient authentication of the record to require its admittance in evidence.”

See also Rule 44, A.R.Civ.P. In this instance, there was a complete absence of any attempt to qualify the record alluded to by the witness under this rule of evidence.

Apparently recognizing this dilemma, the State argues that the procedure utilized was proper under the theory of “present recollection revived.” This position overlooks the fact that (1) no memorandum or record was used here to refresh the witness’s errant memory, and (2) the witness here testified not to an independent knowledge of the fact but to the contents of a record not in evidence. Cf. Gibson v. State, 347 So.2d 576 (Ala.Cr.App.1977).

Having recognized the error in the admission of the testimony pertaining to the amount of money taken, however, we have concluded that this error was not prejudicial to the substantial rights of the accused. Mikell v. State, 242 Ala. 298, 5 So.2d 825 (1942). The indictment charged the defendant with taking $1,322.40. The evidence disclosed that the petitioner obtained $4.00 from the complaining witness and two bags containing money. In a robbery conviction, the amount of money stolen is not an essential element of the charge. Code of 1975, § 13A-8-40, et seq. Hence, the theft of money having been proved under the circumstances proscribed by statute, no prejudice has resulted to the petitioner on account of the procedure used by the prosecutor to prove the amount charged in the indictment.

II.

On the second issue, the petitioner finds support in a federal circuit court decision, McMorris v. Israel, 643 F.2d 458 (7th Cir.1981). There, the prosecution’s case rested solely upon the testimony of the victim to identify the defendant, who denied any involvement in the crime. The victim had identified the defendant “upon a short observation in the dark while being knocked to the ground.” The Seventh Circuit Court of Appeals held that the defendant’s offer to stipulate to the admission of his polygraph examination could not have been summarily refused by the prosecution. That court looked favorably upon the Wisconsin court’s recognition of polygraph results in State v. Stanislawski, 62 Wis.2d 730, 216 N.W.2d 8 (1974), holding that they were admissible by stipulation under certain guidelines. At bottom, the favorable position of the Wisconsin court upon the admission of polygraph examinations stems from the premise adopted by that court that “[sjcientific developments seem to have made the polygraph more reliable.” McMorris, 643 F.2d at 462.

Criticizing the unrestricted veto enjoyed by a prosecutor which would prevent the use of the polygraph test, the Seventh Circuit Court of Appeals stated, at 464:

“The sole justification that we can perceive for giving the prosecutor the power to exclude polygraph evidence is to interpose an additional check on the determination that polygraph evidence is sufficiently trustworthy and capable of evaluation by the jury to be admitted in a particular case. Such an additional check can certainly serve valid purposes. For example, the prosecutor may properly refuse to enter into a stipulation because the defendant proposed to use an unqualified examiner or to take the test under conditions not conducive to reliable results. The prosecutor might also justifiably refuse to enter into a stipulation if he has reason to believe that the defendant is ‘polygraph proof because he managed to evade detection of deceptive responses in a previous examination. The right of an accused to present evidence in his defense must still yield to ‘established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt or innocence. Chambers [v. Mississippi], 410 U.S. [284] at 302, 93 S.Ct. [1038] at 1049 [35 L.Ed.2d 297]. The prosecutor may thus perfectly validly refuse to stipulate when his veto is being used to increase the reliability of the trial process. However, as an adversarial figure, the prosecutor's refusal to enter into a stipulation must be for justifiable reasons. Justifiable reasons in this context are reasons which go to the reliability of the test or to the integrity of the trial process, not reasons which consider merely the relative tactical advantages from the use of the evidence to the prosecution and the defense. To establish this justification, the prosecutor must articulate his reasons and the trial court must have appropriate powers of review.” (Footnotes omitted.)

And finally, the Seventh Circuit Court of Appeals cogently observed that its decision “is closely linked to the peculiarities of the Wisconsin stipulation rule,” which is unlike a “consent” rule whose effect is to simply allow the parties to waive the benefit of an evidentiary rule barring polygraph evidence.

In contradistinction, the results of polygraph examinations are, in general, inadmissible in Alabama. Stewart v. State, 398 So.2d 369 (Ala.Cr.App.1981). They are admissible, however, upon stipulation of the parties, subject to certain conditions which relate to the accused’s knowledge of his rights thereunder and the trial court’s discretion relating to the conduct of the test itself. See Wynn v. State, 423 So.2d 294, 299-300 (Ala.Cr.App.1982). Nothing in that case, however, nor in any other Alabama case to which we have been cited, requires the prosecutor’s consent to an offer of the accused to stipulate to the admission of the results of the accused’s polygraph examination. As yet, Alabama has not adopted the premise of Wisconsin that such tests have achieved such a degree of reliability and scientific recognition “that their unconditional rejection is no longer appropriate.” McMorris, 643 F.2d at 465.

AFFIRMED.

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


author: SHORES, Justice.

text:
    Edwin TABER, et al. v. NATIONWIDE MUTUAL INSURANCE COMPANY, a corporation.
    83-160.
    Supreme Court of Alabama.
    Feb. 24, 1984.

      Thomas E. Davis of Burns, Shumaker & Davis, Gadsden, for appellants.
    Michael K. Beard of Rives & Peterson, Birmingham, for appellee.
   SHORES, Justice.

Edwin Taber, Eddie Taber, Phillip Troup, and Rhanda Troup, all plaintiffs or defendants in a negligence suit, appeal from the grant of Nationwide Mutual Insurance

Company’s motion for summary judgment in this separate declaratory judgment action. The trial court found that, as a matter of law, Nationwide is under no obligation to provide a defense for Edwin Taber in the negligence action. We affirm the judgment.

On July 10, 1982, an automobile driven by Eddie Taber struck and injured Phillip Troup, Troup and his wife filed suit, naming as defendants Eddie Taber and his father Edwin Taber, the owner of the automobile. The Troups seek recovery from the father on the basis of negligent en-trustment of the automobile to the son, an allegedly incompetent driver. Edwin Taber made a demand upon Nationwide, which carried an automobile liability insurance policy for him, to defend him on this claim. Thereafter, Nationwide filed this action to determine whether, under the policy, it must provide coverage for the accident and defend Edwin Taber.

At the time of the accident, Edwin Taber owned four vehicles other than the one driven by his son. The ear involved was given by him to his son as a gift and was insured by Allstate Insurance Company, not Nationwide. The title to the car remained in Edwin Taber’s name because it was mortgaged to his credit union.

The Troups and, presumably, the Tabers, who did not file a brief, contend that Nationwide is obligated under the terms of the policy to defend Edwin Taber on the claim against him and, if unsuccessful in its defense, pay the judgment. We are asked to construe a section of the policy which they claim supports their contentions. This section states as follows:

“[T]he Company agrees with the Policyholder named in the attached Declarations which are made a part hereof:
“C. PROPERTY DAMAGE & BODILY INJURY — LIABILITY
“To pay all sums which those entitled to protection become legally obligated to pay as damages arising out of the ownership, maintenance or use ... of the described automobile....
“(2) ... Those entitled to protection under these Coverages ... are (a) the Policyholder....”

■ The Troups contend that the trial court erred in granting Nationwide’s motion for summary judgment and finding that the policy was unambiguous as a matter of law and, therefore, did not provide coverage under this section. They assert that there is ambiguity in this section because the term “described automobile” is not defined in the policy. It is claimed that this term can be interpreted to mean an automobile covered by this policy, or an automobile owned by the insured, regardless of coverage. The Troups argue that a jury should have been allowed to determine which was the meaning intended.

We have studied their argument and the policy and hold that the trial court’s finding that this section is unambiguous is correct. The policy was properly construed according to the applicable rules of law as stated in Green v. Merrill, 293 Ala. 628, 308 So.2d 702 (1975):

“Green argues that when the language of an insurance policy is vague, uncertain, and subject to two different interpretations, the court should adopt the interpretation most favorable to the insured. While this is a'correct statement of the law, it is not here applicable, because this court is not of the opinion that the language employed in the subject policy was uncertain, vague, or ambiguous. Where there is no ambiguity this court will not indulge in constructions favorable to the insured. Alabama Farm Bureau Mutual Casualty Insurance Co. v. Goodman, 279 Ala. 538, 188 So.2d 268 (1966); The Praetorians v. Hicks, 234 Ala. 451, 175 So. 258 (1937); Empire Life Insurance Co. v. Gee, 178 Ala. 492, 60 So. 90 (1912).
“In construing the provisions of an insurance policy, the language contained therein must be given its common interpretation. As was stated by this court in Alabama Farm Bureau Mutual Casualty Insurance Co. v. Goodman, supra:
‘It is the duty of the courts to take the words of an insurance policy as they are found in it, and as persons with usual and ordinary understanding would construe them when used to express the purpose for which they were employed. Holloway v. State Farm Mutual Automobile Ins. Co., 275 Ala. 41, 151 So.2d 774; Franklin Life Ins. Co. v. Lewis, 36 Ala.App. 313, 55 So.2d 518.’ ”

Green v. Merrill, 293 Ala. at 631, 308 So.2d at 704.

The term “described automobile,” when “considered in relation to all other clauses and viewed in the light of the entire contract,” clearly means only the automobiles insured under this policy. Miller v. Liberty National Life Insurance Co., 243 Ala. 250, 252, 9 So.2d 132, 133 (1942). There is a declaration sheet attached to the policy and expressly made a part of it, which describes and lists the automobiles covered. Giving the term its ordinary meaning within the context of the policy, “described automobile” clearly refers to those automobiles listed and described in the declaration.

This section is unambiguous as a matter of law. We will enforce it as it is written. Ranger Insurance Co. v. Hartford Steam Boiler Inspection and Insurance Co., 410 So.2d 40 (Ala.1982). According to this section, Nationwide is only obligated to pay damages which arise out of the ownership or use of the “described automobile.” The car involved in the accident is not listed in the declaration; it is not one of the “described automobiles.” Under this section, Nationwide is not obligated to defend Edwin Taber, nor is it liable for any damages resulting from the entrustment.

The appellants have not directed us to any other provision of the policy which may bind Nationwide to provide coverage and a defense for Edwin Taber. The trial court appropriately granted Nationwide’s motion for summary judgment on the grounds that, as a matter of law, the insurance contract unambiguously denied coverage.

AFFIRMED.

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


author: EMBRY, Justice.

text:
    Ex parte John M. REYNOLDS, Jr. (Re: John M. REYNOLDS, Jr. v. Frances Weber BIRNBAUM, et al.)
    82-275.
    Supreme Court of Alabama.
    March 2, 1984.
    James J. Bushnell, Jr., and Gregory J. McKay, Birmingham, for petitioner.
    Jack B. McNamee of Topazi, Morton & McNamee, Birmingham, for respondents.
   EMBRY, Justice.

This is a petition for writ of mandamus.

The underlying lawsuit involves a house located in Homewood, Alabama, which was purchased by John M. Reynolds from Frances and Herbert Birnbaum and Alice and Robert Bolick (respondents). That property was sold at a foreclosure sale after Reynolds defaulted in payment to respondents. Reynolds filed suit contending he was not provided with notice of the sale as is required by § 6-8-66, Code 1975. He requested that the mortgage foreclosure be declared invalid or void, or, in the alternative, that he be allowed to redeem the property.

At a hearing on motions for summary judgment in that action, respondents submitted an affidavit stating facts from which Reynolds concluded fraud had been perpetrated upon him by respondents, in collusion with their attorney, during the process of foreclosure. Two days after receipt of that affidavit, Reynolds amended his complaint, which had theretofore requested only equitable relief, to allege fraud and deceit. He also filed a demand for trial by jury of those legal claims.

Respondents submitted a motion to strike the amended complaint and the jury demand. The trial court granted this motion but noted Reynolds would not be prejudiced from bringing the legal claim on the “law side” of the court. Reynolds petitioned this court to issue the writ of mandamus to the Honorable William C. Barber to compel him to set aside that order.

We conditionally granted mandamus, because it appeared, from the trial court’s order, and from the record, that the trial court had in fact severed Reynolds’s legal claims from his equitable claims, contrary to the spirit of Rule 2, A.R.C.P., which states: “There shall be one form of action to be known as a ‘civil action.’ ” See Ex parte Reynolds, 436 So.2d 873 (Ala.1983).

Pursuant to our order, the trial court withdrew its prior order striking Reynolds’s amendment and held a hearing to determine whether the amended complaint was the last pleading within the contemplation of Rule 38(b). In Washington v. Walton, 423 So.2d 176 (Ala.1982), we noted the rule for the determination whether an amended or supplemental pleading sets in motion the thirty-day time period.for demanding a jury trial, quoting from 2 C. Lyons, Alabama Practice — Rules of Civil Procedure Annotated, Author’s Comments § 38.5:

“ ‘An amended or supplemental pleading sets in motion the thirty-day time period for demanding a jury trial for new issues raised in that pleading. However, the service of an amendment does not breathe new life into a previously waived right to jury trial if the amendment deals with the same issues framed in the original pleadings as to which a waiver has occurred. See Western Geophysical Co. of America v. Bolt Associates, Inc., 440 F.2d 765 (2d Cir.1971) and 9 Wright & Miller, Federal Practice and Procedure, § 2320, p. 95, n. 38 (1971).’ (Emphasis added.)”

423 So.2d at 179.

The trial court’s order after its Rule 38(b) hearing provided, in pertinent part, as follows:

“TWO: The Court heard statements and arguments of counsel on this date relative to whether or not the jury demand as filed by Plaintiff was timely filed and the Court finds that the filing by Plaintiff of his jury demand on October 4, 1982 was beyond the 30 day period from the filing of the last pleading directed to the issues in this case.... ”

Upon receipt of that decision, Reynolds requested that this court issue another writ of mandamus to the trial court, requiring it to rule that his amended complaint was the last pleading directed to the issues in the case, to allow him a jury trial, and to transfer his action to the “law side” of the circuit court.

This court ordered that respondents file an answer to Reynolds’s petition. In answer, respondents stated:

“2. Respondent Judge William C. Barber has further conducted a hearing on September 12, 1983, at which time he heard arguments from counsel for both sides, after which he made a determination that the Petitioner’s Amended Complaint of October 4, 1982 was not a last pleading within the context of Rule 38, Alabama Rules of Civil Procedure, and further determined that the jury demand was not timely filed within thirty (30) days of the last pleading speaking to the issue in the cause.”

Respondents’ answer did not inform this court of the trial court’s rationale in determining that Reynolds’s amended complaint was not the last pleading directed to the issues. We then directed that a brief be filed in opposition to Reynolds’s petition for the writ of mandamus. In their brief, respondents contend that the basis for the trial court’s determination was that Reynolds had failed to state a claim for fraud with the specificity required by Rule 9(b), A.R.C.P.

We must note that there is no indication from the record that the parties were given notice, prior to the hearing, or at the hearing, of the trial court’s consideration whether the pleading was sufficient, or, that it in fact had disposed of that issue through a Rule 38(b) determination that the amended complaint was not the last pleading directed to the issues.

However, in order that this case may be economically disposed of on remand, we have reviewed the pleadings and have determined there was a sufficient statement of fraud in Reynolds’s amended complaint and attached exhibits.

Respondents allege that, because there was no allegation by Reynolds in the amended complaint of the manner in which he relied on statements by those involved in the alleged fraudulent conspiracy, the pleading was insufficient. Petitioner contends, and we agree, that Exhibit C, attached to the pleading, and made a part of it, sets forth the manner of reliance in full.

Under Alabama law, an exhibit attached to a pleading is not only a part of it, but, in the case of a variance between the allegations of the pleading and the exhibit attached to it, the contents of the exhibit control. McCullough v. Alabama ByProducts Cory., 343 So.2d 508 (Ala.1977).

Because Reynolds’s amended complaint demanded a jury trial for new legal issues raised in that pleading, it was the last pleading within the contemplation of Rule 38(b). Washington v. Walton, 423 So.2d 176 (Ala.1982). His jury demand was served upon the other parties not later than 30 days after the service of the last pleading directed to the issues; that demand was timely filed and preserved Reynolds’s right to a jury trial of the legal issues presented in the amended complaint.

Second, Reynolds makes the following request of this court:

“WHEREFORE PREMISES CONSIDERED, the Petitioner prays that the Court will enter an order affirming his right to jury trial of legal claims and will decree that his action be tried in the Law Division because the petitioner will not have an adequate legal remedy in the Equity Division.”

The second aspect of this request must be denied for two reasons. First, it is axiomatic that mandamus is inappropriate unless the petitioner can show a clear legal right and a violation of that right by the trial court. Those circumstances are not present here.

Second, we must again note, that there is but one form of action — the “civil action.” Rule 2, A.R.C.P. It is not a valid objection by Reynolds that he will not have an adequate legal remedy in the “equity division” of the circuit court.

Reynolds’s right to a jury trial of legal issues is expressly reserved by Rule 38(a), and that right has been affirmed by this court in this opinion. It is for the trial court to determine the equitable issues, and for the jury to determine any remaining legal issues. Poston v. Gaddis, 335 So.2d 165 (Ala.Civ.App.), cert. denied, 335 So.2d 169 (Ala.1976), later appeal, 372 So.2d 1099 (Ala.1979). Should there be any doubt about whether a particular issue is of a sort triable to a jury, the question should be resolved in favor of a jury trial. Collins v. Bankers Life & Casualty Co., 394 So.2d 952 (Ala.1981).

Therefore, we mandate that the Honorable William C. Barber set aside his order of 12 September 1983, wherein he determined that Reynolds’s amended complaint was not a last pleading within the context of Rule 38, A.R.C.P., and enter an order consistent with this opinion.

WRIT GRANTED.

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


author: ALMON, Justice.

text:
    Wilford EDWARDS v. CITY OF BIRMINGHAM.
    82-617.
    Supreme Court of Alabama.
    March 2, 1984.
    James P. Rea and M. Clay Alspaugh of Hogan, Smith & Alspaugh, Birmingham, for appellant.
    Milford G. Bass, Jr., Asst. City Atty., Birmingham, for appellee.
   ALMON, Justice.

This is an appeal from a summary judgment in favor of the defendant City of Birmingham. Plaintiff Wilford Edwards sued for injuries received while playing baseball on a baseball diamond in a public park in the City of Birmingham.

Edwards alleged in his complaint that he stepped in a hole between the left field foul line and a nearby chain link fence while attempting to catch a foul ball; that stepping into the hole caused him to fall against the fence, cutting himself on the exposed pointed edges on the top of the fence; and that the negligence of the City, in permitting the hole to remain in such a condition and in allowing the chain link fence to be installed and maintained with the sharp points dangerously unguarded, proximately caused his injuries.

The City filed a motion for summary judgment, saying:

“That for aught that appears this accident occurred while plaintiff was engaged in the use of a recreation area not operated for profit, to-wit: a public park, and that there is by law no duty of care owed to plaintiff by the provisions of Title 35-15-1 et seq., Code of Alabama, 1975, as amended, and under the decision of the Supreme Court of Alabama in Glover v. City of Mobile, 417 So.2d 175 (Ala.1982).”

Edwards responded that Glover did not apply because the defect or condition was created by or under the control of the City, unlike the factual setting in Glover. Edwards also filed an affidavit in opposition to the motion, but the trial court granted summary judgment for the City on February 22, 1983. Edwards timely filed notice of appeal to this Court.

We agree with the City and the trial court that the pleadings and affidavits “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(e), A.R.Civ.P.

Edwards was a mere licensee; indeed, he stated in his affidavit that he paid no admission fee to use the field. Being on the City’s property with the City’s consent but for no business purpose, he was a licensee. Hickey v. Charlton, 335 So.2d 389 (Ala.1976); Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976). The duty a landowner owes to a licensee is not to willfully or wantonly injure him or to negligently injure him after discovering his peril. Bryant v. Morley, 406 So.2d 394 (Ala.1981); Hickey v. Charlton, supra; Tolbert v. Gulsby, supra.

Under certain circumstances, a landowner may be required to warn a licensee of hidden dangers created by the landowner:

“[A] landowner will generally owe no duty to warn a licensee of a potentially dangerous condition unless he does some positive act which creates a new hidden danger, pitfall or trap [emphasis in original], which is a condition that a person could not avoid by the use of reasonable care and skill. Otherwise, a landowner has the right to make use of his land as he may see fit. The licensee’s entrance on the land carries with it no right to expect the land to be made safe for his reception, but he must assume the risk of whatever may be encountered. Once he is there, the law only requires the landowner to refrain from wantonly, maliciously or intentionally injuring him; in other words, the landowner is not liable unless he does some act which goes beyond mere negligence [emphasis added].”

Wright v. Alabama Power Co., 355 So.2d 322, 325 (Ala.1978) (citations omitted); Glover v. City of Mobile, 417 So.2d 175 (Ala. 1982).

Edwards’s complaint only sounds in negligence, and neither the complaint nor his affidavit asserts that the City did any positive act causing the hole to be in the condition which caused him to stumble. The most that can be gleaned from his complaint and affidavit is that he claims the City, by negligently maintaining the park, allowed the hole to remain. Any danger posed by the fence was open and obvious, so no duty to warn of a newly created hidden hazard arose regarding it, either.

Under the authorities cited above, the trial court was correct in granting summary judgment for the City. That judgment is affirmed.

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    FIRST NATIONAL BANK OF FRANKLIN COUNTY, TENNESSEE v. Winston T. SMITH, Jr., et al.
    82-939.
    Supreme Court of Alabama.
    March 2, 1984.

      Gerald R. Paulk of Livingston, Porter & Paulk, Scottsboro, for appellant.
    H.R. Campbell, Scottsboro, for appellees.
   FAULKNER, Justice.

This case is governed by Article 9 of the Uniform Commercial Code on secured transactions. Section 7-9-101, et seq., Code of Alabama (1975). It concerns the sufficiency of a real estate description in a security agreement to create an enforceable security interest in growing crops.

The First National Bank of Franklin County, Tennessee, filed a complaint against David McCord, doing business as McCord & Son Grain Company, which alleged the following: Winston T. Smith executed a security agreement and financing statement in connection with a loan. The documents purported to grant the bank a security agreement in crops described as “Growing soybeans on 48 acres of land owned by Carter L. Smith and' 72 acres owned by Edgar Arnold and 360 acres owned by me all 480 acres located in Jackson County, Alabama.” The documents were properly executed and the financing statement was filed in the Probate Court of Jackson County, Alabama. Smith delivered a quantity of soybeans to McCord. The bank notified McCord by letter that it claimed a security interest in the soybeans and requested that payment for the soybeans be made by check payable to Smith and the bank. Smith defaulted and the bank filed this action.

McCord admitted receipt of a given quantity of soybeans from Smith. He denied liability, however, on the grounds that the security agreement and financing statement did not contain descriptions of the land involved sufficient to create a security interest in the soybeans enforceable against him.

McCord filed a motion seeking a judgment on the pleadings. The trial court granted the motion and the bank appealed.

The Uniform Commercial Code requires that security agreements and financing statements covering growing crops contain descriptions of the land concerned. Sections 7-9-203 and 7-9-402, Code of Alabama. The sufficiency of descriptions in security agreements and financing statements is governed by § 7-9-110, which provides that a description is sufficient whether or not it is specific if it “reasonably identifies what is described.” The official comment to that section sheds some light on the question of the sufficiency of such a description. It provides that the description requirement is evidentiary. It is not necessary for the description to be exact and detailed. Something less than a metes and bounds description will suffice. See Meyer, “Potential Problems Connected with the Use of 'Crops’ as Collateral for an Article 9 Security Interest,” 3 Agricultural Law J. 115, 127-131 (1981). For instance, several courts have enforced security agreements and/or financing statements containing descriptions simply listing the name of the landowner, the approximate number of acres involved, the county, and the direction and distance of the land from a named town. See United States v. Newcomb, 682 F.2d 758 (8th Cir.1982); United States v. Oakley, 483 F.Supp. 762 (E.D.Ark.1980); United States v. Big Z Warehouse, 311 F.Supp. 283 (S.D.Ga.1970); United States v. Smith, 22 U.C.C.Rep. 502 (N.D.Miss.1977); Bank of Danville v. Farmers National Bank of Danville, Kentucky, 602 S.W.2d 160 (Ky.1980). The description in' question contains all of the elements of the descriptions in the aforementioned cases except that it does not indicate the direction and distance of the property from a named town.

We examined the sufficiency of a real estate description in a security agreement and financing statement in Gold Kist v. Farmers and Merchants Bank, 425 So.2d 452 (Ala.1983). The collateral in that case was described as “All crops grown and harvested in 1980 (specifically 250 acres of soybeans) on land rented or leased in Baldwin County, Alabama.” 425 So.2d at 452. We ruled that the description in Gold Kist was inadequate to create and perfect a security interest in crops.

In reaching our decision in Gold Kist we relied on Piggott State Bank v. Pollard Gin Co., 243 Ark. 159, 419 S.W.2d 120 (1976). It involved a description similar to the one in the case at bar:

“CROPS. All of the following crops to be planted or growing within one year from the date hereof on the lands hereinafter described: 7 acres of cotton and 53 acres of soybeans to be produced on the lands of S.E. Karnes; 11.6 acres of cotton and 50 acres of soybeans to be produced on the lands of Mary Gilbee; 4 ½ acres of cotton and 11 acres of soybeans to be produced on the lands of George Nixon; all of the above crops to be produced in Clay County, Arkansas during the year 1965.”

The description in question appears, based on the authority of Gold Kist and Piggott, to be inadequate. This case is, however, in a procedural posture different from the other two. Judgment was rendered in Gold Kist and Piggott after a trial on the merits. Judgment here was based on the pleadings. Although the court in Piggott ruled that the description was inadequate, it noted that the proof at trial had shed no light on the question of whether the debtor grew the number of acres of cotton specified on the land indicated or whether anyone else was growing cotton on the land of S.E. Karnes in 1965.

It is apparent from reading Piggott that the proof at trial in that case could have been such that the description might have been adequate. The financing statement in Gold Kist, or the other hand, was prima facie defective because it failed to name the owner of the property, a requirement of § 7-9-402. Since the description in question is not deficient on its face, the bank should have been afforded the opportunity to introduce evidence relative to the sufficiency of the description. Piggott State Bank v. Pollard Gin Co., supra.

Clearly, the degree of specificity required of a given description is, in part, a function of the factual context in which the documents were executed. The description requirement is evidentiary. The description in a security agreement or financing statement is sufficient if it serves its intended purpose. See official comment to § 7-9-110, Code of Alabama (1975). The description of the collateral in a security agreement is sufficient if it reasonably identifies the land so that it reflects the intent of the parties as to what collateral is covered. The description in the financing statement is sufficient if it serves to put others on notice of the secured party’s claim. Although the description in question is scant at best, its sufficiency, i.e., whether it reasonably identifies the land on which the soybeans were grown, should not have been adjudicated on the basis of the pleadings alone.

REVERSED AND REMANDED.

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

      . Section 7-9-203, as it existed when the security agreement in question was executed, provided:
      "Subject to the provisions of section 7-4-208 on the security interest of a collecting bank and section 7-9-113 or a security interest arising under the article on sales, a security interest is not enforceable against the debt- or or third parties unless:
      "(a) The collateral is in the possession of the secured party; or
      "(b) The debtor has signed a security agreement which contains a description of the collateral and in addition, when the security interest covers crops or oil, gas or minerals to be extracted or timber, a description of the land concerned. In describing collateral, the word 'proceeds’ is sufficient without further description to cover proceeds of any character.”
      In 1981, Section 7-9-203 was amended to read, in part:
      "(1) Subject to the provisions of section 7-4-208 on the security interest of a collecting bank and section 7-9-113 on a security interest arising under the article on sales, a security interest is not enforceable against the debt- or or third parties with respect to the collateral and does not attach unless:
      "(a) The collateral is in the possession of the secured party pursuant to agreement, or the debtor has signed a security agreement which contains a description of the collateral and in addition, when the security interest covers crops growing or to be grown or timber to be cut, a description of the land concerned; and
      “(b) Value has been given; and
      “(c) The debtor has rights in the collateral.” Section 7-9-402 provided, inter alia, that:
      "(1) A financing statement is sufficient if it is signed by the debtor and the secured party, gives an address of the secured party from which information concerning the security interest may be obtained, gives a mailing address of the debtor and contains a statement indicating the types, or describing the items, of collateral. A financing statement may be filed before a security agreement is made or a security interest otherwise attaches. When the financing statement covers crops growing or to be grown or goods which are or are to become fixtures, or timber, the statement must also contain a description of the real estate concerned and the name of the record owner thereof. A copy of the security agreement is sufficient as a financing statement if it contains the above information and is signed by both parties.”
      After it was amended in 1981, § 7-9-402 read, in pertinent part:
      “(5) A financing statement covering timber to be cut or covering crops growing or to be grown, or a financing statement filed as a fixture filing (section 7-9-313) where the debtor is not a utility, must show that it covers this type of collateral, must show that it is to be cross-indexed in the real estate mortgage records and must contain a description of the real estate. If the debtor does not have an interest of record in the real estate, the financing statement must also show the name of a record owner.”

      . We decline to comment on the bank’s arguments that perfection was irrelevant as to McCord, based on actual notice by McCord of the bank's claim. Resolution of that issue is not necessary to our holding.


author: ADAMS, Justice.

text:
    Ex parte Lucy A. JONES. (In re Lucy A. JONES v. Tommie Carl FAIRLEY, a/k/a Tommy Carl Jones and Tommy Jones).
    82-1114.
    Supreme Court of Alabama.
    March 2, 1984.

      P. Hilton-Green Tomlinson of Pritchard, McCall, Jones, Spencer & O’Kelley, Birmingham, and W.W. Dinning of Lloyd, Dinning, Boggs & Dinning, Demopolis, for petitioner.
    Douglas Corretti of Corretti & Newsom, Birmingham, and Robert Upchurch of Up-church & Upchurch, Livingston, for respondents.
   ADAMS, Justice.

This is a petition for writ of mandamus to Judge Jack D. Carl of the Jefferson County Circuit Court. The petitioner, Lucy A. Jones, asks this court to require Judge Carl to grant a trial by struck jury in the action filed by her in the circuit court.

The case arose out of the settlement of the estate of Lucy Jones’s aunt, Minnie Jones Marsh, who died in 1968 while residing in Jefferson County. At the time of her death Marsh owned an undivided one-fourth interest in 300 acres of land in Mar-engo County. Marsh’s mother, Ida Jones (Mrs. Jones), was named administratrix of the estate by the probate court of Jefferson County. On July 23, 1974, Mrs. Jones filed in that court a petition to sell the Marengo County land for payment of debts. The only debts claimed against the estate were those alleged by Horace Jones, Jr., who was Mrs. Jones’s son and Marsh’s brother. These alleged debts, totaling $5,751.20, extended back for 23 years. In the petition it was alleged that Lucy Jones was over twenty-one years of age. Actually, she was a minor at the time, having been born January 27, 1954. She was residing in Ohio. No guardian ad litem was appointed for her, nor was service secured upon her. On November 7, 1974, Marsh’s interest in the land was bought by her brother, Horace Jones, Jr., for $2,248.80 cash plus credit for the $5,721.20 debt claimed by him against the estate. Lucy Jones received a check for $69.21, dated September 10, 1975, and bearing the legend “Settlement of Estate of Minnie Jones Marsh,” but did not realize that her interest in the land had been sold.

The petitioner learned of the sale in July 1981, after the deaths of Mrs. Jones and Horace Jones, Jr. On October 29, 1981, she filed suit in the Circuit Court for Jefferson County, pursuant to Code 1975, § 12-11-60, which provides that a party injured by an error of fact or law occurring in the settlement of an estate may correct such mistake by filing a complaint in the circuit court. Her complaint followed the form of a declaratory judgment action. She claimed the right to have the 1974 settlement set aside and the right to have a trial by jury pursuant to Code 1975, § 43-2-354. The court granted the defendant’s motion to strike the jury demand and denied the petitioner’s motion to reconsider. The petitioner thereupon amended the complaint to ask for partition of the lands and again asked for a jury trial. The court struck the amendment and set the case for trial before the court. The petitioner then filed this petition for mandamus, and the court continued the case indefinitely.

Although the petitioner argues the substantive issues of her case, we limit our attention to the single issue of whether mandamus to require a jury trial is appropriate. We hold that it is not, and deny the petition.

The law under which the complaint in this ease was filed provides, in pertinent part:

When any error of law or fact has occurred in the settlement of any estate of a decedent to the injury of any party, without any fault or neglect on his part, such party may correct such error by filing a complaint in the circuit court within two years after the final settlement thereof. The evidence filed in the probate court in relation to such settlement must be received as evidence in the circuit court, with such other evidence as may be adduced. A failure to appeal from the decree of the probate court shall not be held to be such fault or neglect as will bar the plaintiff the remedy herein provided.

Code 1975, § 12-ll-60(a). This statute has appeared in the codes of Alabama, with little alteration, since Code 1852. It has, historically, been a method of providing equitable relief to the aggrieved party. The filing of the complaint constitutes a direct attack on the decree of the probate court. Johnson v. Pugh, 239 Ala. 12, 193 So. 317 (1940). In the early case of Waldrom v. Waldrom, a suit brought under a predecessor of the statute cited above, this court held:

A decree of the Probate Court ... possesses the same dignity, and has the same force and conclusiveness, as the judgment of any court of record. While a court of equity has original jurisdiction to open such settlement, when it is appealed to, and its jurisdiction invoked for such purpose, the same special grounds of equitable interference must be shown, as in case of a judgment at law. — Waring v. Lewis, 53 Ala. 615. A proper and due regard for the peace and interests of society requires strictness and caution in exercising the power to disturb the decrees and judgments of other courts of competent or concurrent jurisdiction, and re-opening controversies, which it is the policy of the law to quiet_ To successfully invoke the interposition, it is not sufficient that wrong has been done, but it must be manifest that the wrong occurred because of accident, surprise, fraud, or the act of the opposite party, and without fault or neglect on the part of the party complaining.

Waldrom v. Waldrom, 76 Ala. 285 at 289 (1884).

In equity a party is not entitled, as a matter of right, to a jury to determine issues of fact unless it is so provided by statutory or constitutional provision. In the absence of any such provision, the power and duty to decide all questions of fact and law rest with the court. Meriwether v. Reynolds, 289 Ala. 361, 267 So.2d 434 (1972). After the merger of law and equity under the Alabama Rules of Civil Procedure, the Alabama Court of Civil Appeals observed, in deciding that a defendant in an equitable procedure was not entitled to a-jury trial:

Rule 38(a), ARCP, provides that the “right of trial by jury as declared by the Constitution of Alabama or as given by a statute of this state shall be preserved to the parties inviolate.” Section 11, Constitution of Alabama of 1901, states that “the right of trial by jury shall remain inviolate.”
This constitutional guaranty of trial by jury does not extend to causes of action unknown to the common law. City of Mobile v. Gulf Development Co., 277 Ala. 431, 171 So.2d 247 (1965). Further, Rule 38(a), ARCP, simply preserves the historic right to a jury trial where that right existed at the time of the adoption of the Alabama 1901 Constitution. U-Haul Co. of Alabama v. State, 294 Ala. 330, 316 So.2d 685 (1975).

Shelton v. Shelton, 376 So.2d 740 (Ala.Civ.App.1979).

The relief provided under § 12-11-60 was unknown to the common law, and the statute itself makes no provision for a trial by jury. The petitioner maintains, however, that Code 1975, § 43-2-354 applies in the present case. That section provides, inter alia, that if a judgment on a claim against an estate is rendered by a probate court,

either party may, within 30 days after the rendition of such judgment, appeal to the circuit court of the county in which the administration of said estate is pending, and the trial of the validity of said claim in said circuit court shall be de novo, and upon demand of either party, filed in the circuit court within 30 days from the taking of said appeal, shall be tried by a jury.

The petitioner claims that she was denied the right to appeal from the judgment of the probate court by the lack of service upon her and the failure to appoint a guardian ad litem to protect her interests. Therefore, she concludes, she may now, after discovery of the fraud, pursue that right.

We emphasize that the petitioner has filed her complaint pursuant to § 12-11-60. With regard to that statute, this court has recently reviewed the case of Evans v. Evans, 200 Ala. 329, 76 So. 95 (1917), and observed:

The Evans court concluded that the scope of the statute was limited: “The statute was thus not permitted (nor was it ever intended) to authorize an appeal from the probate court to the chancery court to retry de novo the facts adjudicated by the decree of the probate court.” 200 Ala. at 334, 76 So. at 100.

General Insurance Company of America v. Barnes, 431 So.2d 1210 (Ala.1983).

The statute is not tantamount to, nor in lieu of, the right of appeal. Williams v. Williams, 202 Ala. 539, 81 So. 41 (1919). The statute does confer the right to correct errors for which relief could not otherwise be obtained. As pointed out in Waldrom v. Waldrom, supra, the errors to be corrected under § 12-11-60 must have occurred because of accident, surprise, fraud, or the act of the opposite party, and without fault or neglect on the part of the party complaining. The accident, surprise, fraud, or act of the opposite party must lie in an extrinsic and collateral act, by which the judgment or decree is directly obtained, rather than in the matter on which the decree or judgment was rendered. General Insurance Company of America v. Barnes, supra; Humphreys v. Burleson, 72 Ala. 1 (1882). Thus, it is clear that an action pursuant to § 12-11-60 is not a substitute for an appeal, and the provisions of § 43-2-354 do not apply to it.

The petitioner also relies on Prater v. Stinson, 26 Ala. 456 (1855), and Johnson’s Administrator v. Johnson, 33 Ala. 284 (1858), as authority for her claim to a jury trial of right. She claims, that her situation is analogous to the ones outlined in those two cases, which were actions of assump-sit. As the action of assumpsit is a common law action, she continues, a jury trial would be proper [Williams v. Shows, 187 Ala. 132, 65 So. 839 (1914)), and, therefore, she is entitled to such a trial.

Without going into the two aforementioned cases in detail, we simply point out that there are many facts, both substantive and procedural, which distinguish those cases from the one before us. The petitioner’s case is not one of assumpsit, and her reliance upon those cases is misplaced.

Next, the petitioner contends that, since her complaint follows the form of a declaratory judgment, she should be able to have a jury to decide issues of fact triable to a jury in common law actions. See, e.g., Engineers of the South, Inc. v. Goodwin, 366 So.2d 673 (Ala.1978). She correctly points out that § 12-11-60 does not specify a particular form of action to be followed in filing the complaint.

We find that, whatever form a plaintiff chooses to adopt in filing a complaint pursuant to § 12-11-60, the action commenced is one for the correction of error in the settlement of an estate in the probate court. It is not necessary under our rules of procedure to designate in a pleading the nature of a procedure. Rule 10(a), A.R.Civ.P., requires only “a designation as in Rule 7(a),” that is, whether the pleading is a complaint, answer, etc. Even that designation, if incorrect, will generally not result in a penalty against the pleader. See Committee Comments, Rule 7; see also Rule 8(c). Thus, the fact that the petitioner labeled her complaint as one for a declaratory judgment does not prevent the circuit court and this court from treating it as any other complaint pursuant to § 12-11-60, which does not provide for a trial by jury.

After her initial demand for a jury trial was stricken by the trial court, the petitioner amended her complaint to request a partition of the contested property, and renewed her claim to a trial by jury. We hold that the petitioner’s request for partition is inappropriate at this time. Unless and until the trial court determines that the decree of the probate court must be set aside, the decree is as conclusive as that of any other court. General Insurance Company of America v. Barnes, supra. Under that decree the petitioner is not entitled to partition. If the circuit court, acting without a jury, rules favorably to the petitioner, then the question of partition could be properly raised.

A writ of mandamus is not granted unless there is a clear showing of error to the injury of the petitioner. The petitioner's right to relief must be clear and there must be no other adequate remedy. Ex parte Harrington Manufacturing Company, Inc., 414 So.2d 74 (Ala.1982); Ex parte Slade, 382 So.2d 1127 (Ala.1980). Because under the circumstances of this case there has been no clear showing of error or of the petitioner’s right to relief, the writ is due to be, and it is, denied.

WRIT DENIED.

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

      . Tommie Carl Fairley, the defendant/respondent in this case, is the present holder of legal title to the disputed land under the will of Horace Jones, Jr.


author: BEATTY, Justice. JONES, Justice

text:
    Ex parte CITY OF TUSKEGEE. (In re Otto MOORE v. CITY OF TUSKEGEE).
    82-1296.
    Supreme Court of Alabama.
    March 2, 1984.
    Concurring Opinion March 23, 1984.

      Edwin L. Davis of Gray, Langford, Sapp, Davis & McGowan, Tuskegee, for petitioner.
    Edward B. Raymon of Raymon, Nathan-son & Raymon, Tuskegee, for respondent.
   BEATTY, Justice.

Following a hearing, Otto Moore, a police officer of the City of Tuskegee (City), was discharged by the City Council of the City of Tuskegee (Council). Moore then filed a complaint against the City, alleging that there was no substantial evidence adduced before the Council to support his discharge. He added:

“Plaintiff avers that prior to his being terminated on August 27, 1981, he was informed that while he was on vacation during the summer that Mr. A.C. Bulls was notified by telephone that he was under investigation for fencing stolen property and that there was going to be a ‘police raid’ involving A.C. Bulls. Plaintiff avers from the information he received ... that the caller identified himself to A.C. Bulls as being ‘Otto Moore.’ Plaintiff denies that he telephoned A.C. Bulls and further alleges that A.C. Bulls does not know who called him other than the caller identified himself as ‘Otto Moore.’ ”

Moore sought reinstatement, back pay, compensatory and punitive damages in unspecified amounts, and attorneys fees. The City moved to dismiss the complaint. That motion was denied, whereupon the City filed its answer, which alleged, among other matters, that (1) Moore’s hearing (before the Council) had afforded all due process procedures, and (2) that the circuit court was without jurisdiction of the subject matter. The City also moved for summary judgment, again contending that the hearing had been attended with notice, the presence of Moore’s counsel, the right to call witnesses, and all other due process procedures. The motion was supported by the affidavit of L.M. Gregg, mayor pro tern of the Council. This motion was also denied.

A pre-trial conference was held on March 9, 1983. The circuit court then entered an order identifying the issues:

“(a) Did Plaintiff have a property interest in his employment to the extent as to require substantive due process in the termination of such employment?
“(b) Did the Defendant comply with its own rules and regulations in conducting the hearing and terminating the Plaintiff’s employment; i.e., was the Plaintiff afforded procedural due process?”

This order also summarized the evidence to be considered at the hearing which was to ensue.

The trial was held in circuit court in September 1983. At that hearing, Moore’s counsel introduced into evidence, over objection, a Tuskegee News article of August 27, ¡L981, in which the author, J.J. Johnson, stated:

“Mayor Johnny Ford has promised to sustain the police department’s recommendation which should come to his desk by the week’s end following an investigation into how criminal suspects may have found out about police raids.”

The trial court called Johnson as its witness. Johnson testified that he did not remember, but that if the statement was attributed to the mayor then he did make it; that it was a summary of a conversation he had with the mayor. Several other witnesses were called, namely, J.B. Walker, the chief of police; L.M. Gregg; and the plaintiff Moore.

Following this hearing, the circuit court entered another order outlining additional issues for trial. In part the court found that “the substantive standards are set forth in the 1972 Code of Conduct and further that the procedures outlined in the 1977 Ordinance are applicable.” The court also found that the mayor had committed himself in advance to uphold the police department, and that the council could not grant Officer Moore a fair hearing. The trial court then ordered a further de novo hearing in circuit court on the merit of Officer Moore’s discharge.

In response, the City of Tuskegee moved to have this order modified so as to either (1) enter judgment for the City or (2) to remand the cause to the Council for a new hearing. This motion was denied, whereupon the City petitioned this Court for a writ of prohibition to prevent the circuit court from proceeding to a disposition of the case on the merits.

Simply put, it is the City’s position that no general jurisdiction exists in the circuit court to consider the merits of Moore’s discharge. It contends that the Council acted lawfully under its merit system, with the result that Moore was accorded procedural and substantive due process. The City maintains that the circuit court’s jurisdiction in such a case is not original, but limited to review by certiorari in order to determine whether or not the employee was given due process of law.

The respondent trial judge, by answer, has stated that the remaining issue to be tried is whether or not the City of Tuskegee acted arbitrarily and capriciously in discharging Otto Moore. The respondent, Moore, in addition to adopting that position, also contends that the circuit court has original jurisdiction of this case under Code of 1975, § 12-11-31, as a civil action in which a plain and adequate remedy is not provided in other judicial tribunals.

We note that the trial court found that the substantive standards of the City’s 1972 Code of Conduct, under which officer Moore was judged by the Council, as well as the procedures for the Council’s action outlined in the City’s ordinance of 1977, were applicable to this case. These, apparently, were adopted to comply with Code of 1975, § 11-43-182, requiring the City to provide a civil service merit system. Those standards being before the trial court, the next question is: What is the scope of the trial court’s review in an action brought by the person discharged under those standards? Under these circumstances, the review by the circuit court is, in effect, that of certiorari, and on such a review the circuit court is restricted to examining only the external validity of the proceeding. Ferrell v. Langley, 421 So.2d 116 (Ala.Civ. App.1982); cf. Guthrie v. Civil Service Board of Jasper, 342 So.2d 372 (Ala.Civ.App.1977), and Ex parte Hennies, 33 Ala.App. 377, 34 So.2d 22 (1948). Thus, in this case, the circuit court is limited to a review of the record made before the Council and questions of law presented thereby. And, where there was substantial evidence in support of the Council’s discretionary discharge authority, the reviewing circuit court may not supplant the Council’s judgment with its own. Guthrie, supra, at 375.

Now, in this case, the circuit court has concluded that Officer Moore cannot obtain a fair hearing before the Council because the court concluded from the newspaper article introduced in circuit court that the Mayor was predisposed to discharge Officer Moore. Thus, the circuit court has concluded that it will proceed so that Officer Moore shall “now receive a fair hearing in this [the trial] court” on the merits of his dismissal.

If the circuit court did proceed as it as indicated, then it would assume a jurisdiction it does not possess. The petition requests that we issue a writ of prohibition to prevent the exercise of such jurisdiction. Such a petition properly tests jurisdiction, and lies when a court acts in excess of its jurisdiction. Hudson v. Sparks, 272 Ala. 203, 129 So.2d 664 (1961); Goodwin v. McConnell, 187 Ala. 431, 65 So. 788 (1914).

Under the authorities cited, we have no alternative but to grant the writ of prohibition and remand this case to the honorable circuit court with directions to review the record of the dismissal proceeding to determine whether the law, substantive and procedural, was properly applied, and whether the ruling complained of by plaintiff was supported by legal evidence.

WRIT GRANTED WITH DIRECTIONS.

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

JONES, Justice

(concurring in the result).

While I first concurred generally in the Court’s opinion, I suppose in a technical sense I should be shown as concurring in the result. I believe the opinion as written is susceptible to being read to the effect that in all circumstances the circuit court’s authority to review a law enforcement officer’s discharge pursuant to § 11-43-182 is limited to “that of certiorari,” i.e., “restricted to examining only the external validity of the proceedings.” “Thus, in this case,” says the Court’s opinion, “the circuit court is limited to a review of the record made before the council and questions of law presented thereby.”

The effect of such a holding would be to preclude from the circuit court’s consideration all matters concerning the mayor’s predisposition to discharge Officer Moore. It is the qualifying language “in this case” that causes me to concur in the holding. Certainly, it cannot be denied that the circuit court’s general jurisdiction to try issues of fraud, collusion, or arbitrariness may be invoked, including a claim that the mayor, sitting and voting as a member of the city council, had a fixed opinion as to the merits of Officer Moore’s discharge. See Greenberg v. Alabama State Tenure Commission, 395 So.2d 1000 (Ala.1981), and Alabama High School Athletic Association v. Rose, 446 So.2d 1 (Ala.1984).

In this case, the pleadings, taken along with the trial court’s pretrial orders, shows that the Plaintiff did not invoke the circuit court’s jurisdiction on this expanded issue. Such jurisdiction could not be invoked through the testimony alone. Thus the “[trial court] assume[d] a jurisdiction it does not possess.” I do not read this Court’s opinion as precluding the trial court’s prerogative upon remand, in light of the totality of the evidence already taken, to then remand this cause for a new due process hearing before the city council, which, as the opinion points out, was one of the city’s alternative prayers for relief before the circuit court. See Godwin v. City Council of the City of McKenzie, Alabama, 449 So.2d 1231 (Ala.1984).


text:
    Ex parte MID-CONTINENT SYSTEMS, INC., and D.G. Seago, Jr. (In re V-J CORPORATION, v. BESSEMER OIL COMPANY, INC.; William T. Allen; Mid-Continent Systems, Inc., D.G. Seago, Jr., et al.)
    83-156.
    Supreme Court of Alabama.
    March 2, 1984.
    Robert H. Loeb and Thomas M. Ray of Gordon, Silberman, Loeb, Cleveland & Gordon, Birmingham, for petitioners.
    Richard F. Ogle and Douglas J. Centeno of Denaburg, Schoel, Meyerson, Ogle, Zarz-aur & Max, Birmingham, and Arthur Green of Paden, Green & Paden, Bessemer, for respondents.
   EMBRY, Justice.

This is an original petition for the writ of mandamus seeking to require the Honorable Walter G. Bridges, Judge of the Circuit Court of Jefferson County, Bessemer Division, to set aside an order requiring production of records for examination by a court appointed auditor. The records are those of Mid-Continent Systems, Inc., of which D.G. Seago, Jr., is chief executive officer and chairman of its board of directors.

The action giving rise to this petition was brought by Y-J Corporation against Mid-Continent and Seago, among others, seeking money damages on an open account, for worthless checks, and under the legal theories of: unjust enrichment, corporate alter ego — instrumentality theory, conspiracy to defraud, fraud, fraudulent suppression of material facts, deceit, and tortious interference with business relationships.

Y-J filed a motion for preliminary injunction and other relief which requested the trial court to

“[Rjefer this cause to a special master for a determination of whether, and the amount thereof, of any conversion of the assets of Bessemer Oil Company, and/or usurpation of the customer base of Bessemer Oil Company exists.”

In the course of a hearing on that motion, an agreement was reached by V-J Corporation, Mid-Continent Systems and Seago. That agreement contains the following provisions pertinent to this appeal:

“WHEREAS, the parties executing this agreement are desirous of entering this agreement, pendente lite, in lieu of further proceedings in the Motion for Preliminary Injunction, it is therefore agreed as follows by and between the parties to this agreement:
“1. The Circuit Court of Jefferson County, Bessemer Division, shall appoint an Auditor. Such Auditor shall have no power other than to gather information from the records of the various parties to this action, and other relevant records.
“2. Said Auditor will be chosen by Y-J and Southeast and approved by Mid-Continent Systems (MCS) and D.G. Seago, Jr. (Seago), which approval will not be unreasonably withheld.
“5. The work performed by the Auditor, pursuant to this Agreement, will be limited to transactions, directly or indirectly, between and among MCS, Seago, and Bessemer Oil Company (Bessemer Oil), V-J & Southeast.
“6. The information gathered by the Auditor shall not be used for any competitive advantage by any oil company, directly or indirectly, whether or not a party to this action.
“7. All parties to this Agreement shall have access to the Auditor and to his work papers. This access shall include the right to direct the attention of the Auditor to any information deemed relevant by any of the parties to this Agreement, including, but not limited to, the MCS letter dated 12/29/81 to credi-" tors of Bessemer Oil.”

The court proceeded to appoint, as auditor, a firm of certified public accountants that embarked upon the duties assigned them under the agreement. During the course of their examination of books and records of the parties litigant, the auditors determined there was a need to examine books and records of Mid-Continent at West Memphis, Arkansas. They went there to do so and learned of the existence of certain further records pertinent to their assigned task. After being denied the right to examine those records, they returned to Birmingham and reported this, after which V-J filed a motion to compel production and for sanctions. After an evidentiary hearing, the trial court ordered Mid-Continent and Seago to produce the documents. This original petition was then filed in this court for the writ of mandamus or prohibition.

Pertinent portions of the order complained of by Mid-Continent and Seago read:

“Therefore, the Defendants, Mid-Continent Systems, Inc. and D.G. Seago, Jr., are hereby ORDERED to produce for examination by the AUDITOR appointed by this Court on June 20, 1983, all documents requested by the AUDITOR in furtherance of its investigation. Without limitation, these Defendants are specifically ORDERED to produce for examination by the AUDITOR all records which relate to the pricing policies of Mid-Continent Systems, Inc., from January 1, 1981 to the present, for any and all customers of Mid-Continent Systems, Inc. during that period of time.
“FURTHER, this Court hereby enters the following Protective Order insofar as it relates to any documents produced which relate to the pricing policies of Mid-Continent Systems, Inc. with its customers from January 1, 1981 to the present:
“1. Any such information gathered by the AUDITOR shall not be used for any competitive advantage by anyone, whether or not a party to this action.
“2. The AUDITOR shall not disclose the substance of any information gathered from those records to any persons other than counsel for the Plaintiff and the Defendants, Mid-Continent Systems, Inc. and D.G. Seago, Jr.
“3. Any counsel receiving any such information from the AUDITOR shall not discuss said information with any non-counsel, including parties, except as is reasonably necessary for the preparation of the trial of the issues in this cause. [Here appears a handwritten addendum to this paragraph.]
“4. If any party has reason to believe that anyone is violating the Protective Order contained herein, any such party shall immediately report that fact to this Court for further action consistent with this ORDER.”

Petitioners stated the issues to be:

“I. Based upon the agreement of the parties approved by the court on June 30, 1983, and the evidence presented at the hearing on October 11, was the order of the court appropriate?
“II. In issuing the order dated October 14, 1983, did the court err in its construction of the limits imposed by the order of the court dated June 20, 1983?”

Respondent states the issues as:

“I. Whether the trial court properly exercised its discretion in ordering MCS and Seago to produce MCS documents to the court appointed auditor.
“II. Whether MCS and Seago are adequately protected by the October 14, 1983 order.
“HI. Assuming arguendo that the trial court abused its discretion, whether MCS/Seago suffered error without injury due to the discoverable nature of the documents in question.”

The controlling principles of law under which this court will determine whether to issue the writ of mandamus are: (1) Absent a clear abuse of discretion we will not disturb the trial court’s order requiring production of the documents. Ex parte Allstate Insurance Co., 401 So.2d 749 (Ala.1981). We find no such abuse and will therefore deny the petition. (2) The writ of mandamus will not issue when the right sought to be enforced is doubtful. We find the right sought to be enforced more than doubtful. Ex parte Dorsey Trailers, Inc., 397 So.2d 98 (Ala.1981).

Petitioners’ statement of the issues is somewhat misleading. Apparently they would have this court review this case confined within a very limited context of their construction of the agreement and without regard to the authority of the trial court under the law and appropriate procedural rules. Under the agreement itself, the only limitations placed upon the auditor are found in paragraphs one and five. The auditor's work, or investigation, is limited to transactions, directly or indirectly, between and among Mid-Continent, Seago, Bessemer Oil Company, V-J, and Southeast, and information gathering is confined to records of the various parties to this action, and other relevant records. The exhibits to the petition (which make the record in this kind of proceedings) demonstrate that the documents ordered produced were in the records of Mid-Continent and contained information relevant to transactions indirectly between and among these parties. They also constituted “other relevant records.” The order of production was therefore well within the discretion of the trial court, as well as being within the powers granted the auditor by the agreement. Additionally, paragraph seven of the agreement is an ample grant of power to the parties, and thus to the auditor, for the latter to examine the records ordered produced. From all of this, it is quite clear the trial court’s production order is not overly broad and was appropriate.

Neither did the trial court err in its construction of the limits imposed by its order of production. That court was not confined to the agreement in its power to compel production of the records it ordered produced. Rule 53(a), A.R.C.P., provides that in any action pending the court may appoint a special master; the rule goes on to state: “As used in these rules the word ‘master’ includes a referee, an auditor, and an examiner.” Rule 53(c) states in part: “He may require the production before him of evidence upon all matters embraced in the reference, including the production of all books, papers, vouchers, documents and writings applicable thereto.” See Pathe Laboratories, Inc. v. du Pont Film Manufacturing Corp., 3 F.R.D. 11 (S.D.N.Y.1943).

Regarding petitioners’ contention that the trial court unlawfully delegated its authority to the auditor, we recognize that a court may not delegate a judicial function. This the trial court did not do. Only when the trial court allows a master to resolve purely legal questions can it be said there is an unlawful delegation of judicial powers. See Reed v. Cleveland Board of Education, 607 F.2d 737 (6th Cir.1979). In this case the auditor was merely seeking factual information to be made a part of its report of investigation of the transactions, directly or indirectly, between the parties to this litigation. See Cruz v. Hauck, 515 F.2d 322 (5th Cir.1975). For further en-lightment respecting the trial court’s power to order a reference more broad than a stipulation of the parties without abusing its discretion, see Torres v. International General Electric, S.A., 303 F.2d 615 (1st Cir.1962).

The court having concluded that petitioners show no right to have the writ of mandamus issue, the writ is denied.

WRIT DENIED.

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

      . The words in handwriting are: "No person receiving any such information from any counsel shall disclose such information to any other person."


text:
    Betty Lou ROBERSON v. ALLIED FOUNDRY AND MACHINERY COMPANY, Robert Lee Watts, et al.
    82-710.
    Supreme Court of Alabama.
    March 9, 1984.

      William Roy Stokes and William R. Stokes, Jr. of Stokes, Jernigan & Stokes, Brewton, for appellant.
    Broox G. Garrett and Broox G. Garrett, Jr. of Garretts, Thompson & Hines, Brew-ton, and L. Vastine Stabler, Jr. and H. Thomas Wells, Jr. of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for appellees.
   FAULKNER, Justice.

This is an appeal from a summary judgment granted by the Circuit Court of Es-cambia County to Allied Foundry and Machinery Company (Allied), Brewton, Alabama, in a negligence action. We affirm.

In 1981, Robert L. Watts and Milton C. Doss were inmates at the Fountain Correctional Facility, Atmore, Alabama. Prior to and on November 10-11, 1981, Watts and Doss were engaged in the prison’s “work release program,” through which they were employed by Allied. Watts and Doss were working the third shift at Allied on November 10-11, 1981, and were scheduled to be on duty from 11:00 p.m. on November 10, 1981, to 7:00 a.m. on November 11, 1981.

Betty Lou Roberson is the manager of the Delta Mart, a convenience store in Brewton located approximately 100 yards from the Allied plant. It can be seen from the plant both day and night. On the night of November 10-11, 1981, Mrs. Roberson was working as the cashier at Delta Mart. She came to work at 2:00 a.m. and was the only employee at the store during her shift.

Watts and Doss left the Allied premises and walked over to the Delta Mart three times during the night of November 10-11, 1981. On the first trip, shortly after 2:00 a.m., Watts and Doss merely bought a cup of coffee and left the premises. About twenty-five minutes later, Watts and Doss returned to the Delta Mart, bought some wine and left again. On their third trip, about thirty minutes after their second trip, Watts and Doss entered the store, robbed Mrs. Roberson, assaulted her, causing serious physical injuries, and attempted to rape her.

Watts and Doss fled from the store when two customers arrived and attempted to stop the attack. The customers called the police, and Watts and Doss were apprehended at the Allied plant shortly after the incident.

There is evidence that several officials at Allied, including the supervisors of Watts and Doss, knew, or were highly suspicious, that Watts and Doss were drinking intoxicants on the night of the incident. Also, there is evidence that Allied officials had reason to believe that Watts and Doss had, on previous occasions, drunk intoxicants while on the job. It is also shown that Allied officials allowed work release inmates, including Watts and Doss, to leave the Allied premises during break time, in keeping with company policy for all employees.

On January 19, 1982, Mrs. Roberson filed a four-count complaint against Watts, Doss, and Allied. This appeal concerns only Count Three, which alleges a cause of action against Allied for negligent supervision of the work release employees.

On April 7, 1982, Allied filed a motion to dismiss, or, in the alternative, a motion for summary judgment as to Count Three. The relevant part of Allied’s motion states (1) that the torts of Watts and Doss were not foreseeable by Allied; (2) that Allied owed no special duty to Mrs. Roberson because Watts and Doss were work release inmates; (3) that the acts of Watts and Doss were intervening, independent, and efficient causes of Mrs. Roberson’s injuries; (4) that no employer-employee relationship existed between Watts and Doss and Allied; and (5) that, as a matter of law, Allied had no duty, right, or privilege to restrain Watts and Doss for the purpose of protecting the general public.

Mrs. Roberson filed a response to Allied’s motion, stating (1) that Allied had failed to establish the absence of any tria-ble issue of material fact, (2) that the evidence before the court showed there was an issue of material fact as to whether Allied was negligent, and (3) that Allied was not entitled to summary dismissal or judgment since there was a triable issue of material fact. Mrs. Roberson submitted evidence to the court in support of her position, including depositions, an affidavit, answers to interrogatories and various other documents.

A hearing was held on Allied’s motions, and on March 10, 1983, the trial court granted summary judgment in Allied’s favor. The judgment provided that there was no genuine issue of material fact as to Count Three, as last amended, and that Allied was entitled to a judgment as a matter of law. Mrs. Roberson is before this court, on appeal, arguing that the trial court erred in granting Allied’s motion for summary judgment. Mrs. Roberson asserts that Allied had a duty to supervise its employees who were state inmates so as to protect her from the criminal actions of those employees. She argues that Allied breached this duty and is liable for the injuries received by her as a result thereof.

This is a case of first impression in Alabama and, so far as our research reveals, has never been addressed in the United States. The threshold question is whether an employer owes a duty to protect third persons from the criminal acts of state work release employees.

Mrs. Roberson argues that a special relationship exists between an employer and his work release employees by virtue of the fact that they are state inmates, with criminal propensities; she argues that as such inmates they require special supervision by the employer. Mrs. Roberson would have the court adopt a rule of “special duty” on the part of employers who employ work release inmates to supervise and control those employees outside the scope of their employment. This we are not prepared to do.

Work release inmates are certified to the employer by the State Board of Corrections to be “non-dangerous.” Also, employers are instructed by the Board to treat work release employees in the same manner as other employees and to apply the same policies with them as with other employees. Except with regard to a few restrictions imposed by the Board on employers and work release employees, those employees stand in the same relationship with their employers as non-inmate employees. We cannot justify a finding of a special relationship in this case on the bare fact that work release employees are state inmates.

There is no authority in Alabama addressing the specific question at hand. However, our decision seems to be in keeping with recent decisions in Alabama, following the general rale that one has no duty to protect another from criminal attack by a third party. See Berdeaux v. City National Bank, 424 So.2d 594 (Ala.1982) (bank owes no duty to protect customer from injury during armed robbery); Gaskin v. Republic Steel Corporation, 420 So.2d 37 (Ala.1982) (employer owes no duty to protect employee from attack by third party on employee’s premises); Parham v. Taylor, 402 So.2d 884 (Ala.1981) (employer owes no duty to protect employee from criminal acts of third parties on employer’s premises).

We are sympathetic with Mrs. Roberson and understand that she has suffered severe injury. We cannot agree, however, that she should be compensated by rewriting the law of torts. Finding no authority or justification for the premise that a special relationship exists between Allied and its work release employees sufficient to impose a duty on Allied to supervise these employees outside the scope of their employment, we hold that no such duty exists in this case. The trial court’s decision granting summary judgment to Allied was therefore not in error, and is, thus, affirmed.

AFFIRMED.

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

      . A very few cases have dealt with the issue of the employer's duty to control the actions of his employee outside the scope of employment. See Fletcher v. Baltimore and Potomac R.R. Co., 168 U.S. 135, 18 S.Ct. 35, 42 L.Ed. 411 (1897) (employer railroad company who knows employees are throwing objects off its trains has duty to restrain employees to protect general public from injury); International Distrib. Corp. v. American Dist. Tel., 569 F.2d 136 (D.C.Cir.1977) (employer has duty to supervise conduct of its employees who are privileged, because of their employment, to enter property of another); S. Birch & Sons v. Martin, 244 F.2d 556 (9th Cir.1957) (highway construction company had no duty to protect passing motorists from injury by its employees celebrating end of construction); Trammell v. Ramey, 231 Ark. 260, 329 S.W.2d 153 (1959) (employer has no duty to control drunk employee on his own mission, even though employer knew of and helped employee with treatment of his drinking problem); Hogle v. H.H. Franklin Mfg. Co., 199 N.Y. 388, 92 N.E. 794 (1910) (employer who knows employees are throwing missiles out factory window has duty to restraint employees to protect passers-by from injury). We have found no case that deals with an employer’s duty to control the actions of a work release employee in particular outside the scope of his employment.


text:
    Doris PENN, et al. v. D.R. JARRETT.
    82-795.
    Supreme Court of Alabama.
    March 9, 1984.
    Miles T. Powell, Decatur, for appellants.
    Joe Calvin, Decatur, for appellee.
   ADAMS, Justice.

This is an appeal from the final judgment of the Circuit Court of Morgan County in a will contest case. The judgment followed a directed verdict in favor of the proponents after the contestants had closed their presentation of evidence on the sole issue of undue influence exercised upon the testator. We affirm.

Although, as usual, in a will contest case, the facts are quite lengthy, the ultimate facts in this case are simple. Erlene R. Morris, the decedent, executed a will in the office of her attorney and his secretary on March 27,1979. She willed her property to her brother, D.R. Jarrett, and D.R.’s wife, and she excluded her niece, Doris Penn, and her nephew, Billy Frank Jarrett, from any benefits under the will. They are the children of deceased brothers, Timmy Jarrett and Lloyd Jarrett, respectively. As a result of this exclusion, Doris Penn and her cousin, Billy Frank Jarrett contested the will, claiming that their uncle, D.R. Jarrett had unduly influenced their aunt to exclude them.

Evidence at trial tended to show that the decedent was an easy-going, submissive person and a follower rather than a leader. In fact, she married her former school principal, Luther Morris, who was considerably older than she. He ran a small store, and after his death she attempted to run the business for a short time, but then moved to Hartselle, Alabama, into an apartment where elderly, retired people lived. After living in the apartment for five years, she sold some farm property and built a house next door to the property of her brother, D.R. Jarrett, so close that a car could not drive between the two houses. Also, her telephone was an extension of her brother’s telephone. Evidence was adduced that one could “talk Erlene into anything,” and that she was a person who wanted to avoid trouble and who was easily led.

After the sale of some of her property, for which she got approximately $80,-000.00, the decedent seemed excited about buying a piece of property for which her brother D.R.’s daughter-in-law was the salesperson. She indicated that she would have to consult with her brothers before she could finally make up her mind. When the daughter-in-law, not hearing from the deceased, called to get approval for proceeding to close the transaction, D.R. Jarrett answered the telephone and indicated that his sister had changed her mind and, further, that she was not in any condition to talk on the telephone.

There was testimony to the effect that before the deceased received the $80,000.00 from the sale of real estate in Lawrence and Winston Counties, D.R. Jarrett had not visited his sister often. After that, he showed considerable interest and was a frequent visitor at his sister’s residence and the house subsequently built next to him.

The controlling legal principles involved in this case are clear and have been repeated many times in our decisions. Those principles of law are:

In order to support a challenge to a will based on undue influence, the contestant has the burden of showing:
1. A confidential relationship between a favored beneficiary and testator;
2. That the influence of or for the beneficiary was dominant and controlling in that relationship;
3. Undue activity on the part of the dominant party in procuring the execution of the will.

Reed v. Walters, 396 So.2d 83, 86 (Ala.1981). Accord, Arrington v. Working Woman’s Home, 368 So.2d 851 (Ala.1979); Pruitt v. Pruitt, 343 So.2d 495 (Ala.1977); Clark v. Clark, 280 Ala. 644, 197 So.2d 447 (1967), appeal after remand, 287 Ala. 42, 247 So.2d 361 (1971); Brunson v. Brunson, 278 Ala. 131, 176 So.2d 490 (1965); Kahalley v. Kahalley, 248 Ala. 624, 28 So.2d 792 (1947).

The contestants’ main argument on appeal is that they produced at least a scintilla of evidence to prove the undue influence required by our decisions and, therefore, that the trial court should have allowed a jury to decide whether they had met their burden of proof. We do not agree. Although a scintilla is merely a gleam, glimmer, or spark, we do not believe that a scintilla has been made out in this case, at least as to the third aspect of the rule, namely, “undue activity on the part of the dominant party in producing the execution of the will.” Reed v. Walters, 396 So.2d at 86. Contestants’ same argument was proposed and rejected in our case of Reed v. Walters, supra. There is simply not one piece of evidence showing that D.R. Jarrett and/or his wife discussed a will with the deceased, or even took the deceased to the lawyer’s office at the time of the execution of the will. There is no evidence that D.R. Jarrett even knew about a will until his sister’s death. A suspicion is not a scintilla. Arrington v. Working Woman’s Home, 368 So.2d at 854. See Perdue v. Gates, 403 So.2d 165 (Ala.1981).

We conclude that if the trial court had allowed this case to go to the jury and not granted a motion for a directed verdict, all the jury could have considered on the aspect of activity on the part of the dominant party in procuring the execution of the will would have been a suspicion about what D.R. Jarrett did because of his confidential relationship and dominant position in the relationship with his sister. This we would not allow.

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

AFFIRMED.

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