author: BEATTY, Justice.

text:
    NATIONAL SECURITY FIRE & CASUALTY COMPANY and William Feazell v. James VINTSON, Emma Vintson, and Cavalier Insurance Company.
    82-586.
    Supreme Court of Alabama.
    July 6, 1984.
    Martha Williams of Williams & Williams, Cullman and Gary W. Lackey, Scottsboro, for appellants.
    Ronald L. Allen and Jake B. Mathews, Jr. of Merrill, Merrill, Mathews & Allen, Anniston, Betty C. Love, Talladega, Henry Agee and M. Douglas Ghee, James S. Hubbard, Anniston, for appellee Emma Vint-son.
    Robert Dillon of Merrill, Porch, Doster & Dillon, Anniston, for appellee Cavalier Ins. Co.
   BEATTY, Justice.

Appeal by defendants; National Security Fire & Casualty Company (National Security) and William Feazell, from an adverse judgment entered on a jury verdict. The action involved coverage under a fire insurance policy and was brought by plaintiffs, James Vintson, Emma Vintson, and Cavalier Insurance Company (Cavalier). We reverse and remand.

Plaintiff James Vintson originally filed suit in the Circuit Court of Calhoun County on July 17, 1980. Vintson’s complaint, as finally amended, contained three counts: (1)breach of an oral contract for fire insurance; (2) fraud and misrepresentation; and (3) bad faith refusal to pay a direct claim. The case was tried to a jury, and judgment was entered on a jury verdict of $35,000 in favor of Vintson. On appeal, that judgment was reversed and the case remanded for a new trial. National Security Fire & Casualty Co. v. Vintson, 414 So.2d 49 (Ala.1982).

Upon remand, plaintiffs ex-wife, Emma Vintson, and Cavalier were added as parties plaintiff. Cavalier had coverage on the insured risk, which was still in effect at the time of the fire in this case, and would be entitled to a pro rata refund in the event of recovery from National Security.

The facts shown on the second trial are basically the same as those shown on the first trial, as set out by Justice Shores, speaking for the Court in Vintson, supra. On June 10, 1980, Feazell, a debit agent of National Security, visited James Vintson and discussed the purchase of a burial policy. Feazell returned to the Vintson residence on June 18, 1980, at which time he sold Vintson a policy of fire insurance on his mobile home. The application for the insurance was filled out by Feazell. James Vintson signed the application, paid the initial premium, and received a receipt. After completing the application, Feazell forwarded it to National Security to be processed. The mobile home, which was the subject of the application, burned on June 22, 1980.

James Vintson contacted National Security’s Anniston office manager, Mary Morton, on June 23, 1980, and advised her of the loss of his mobile home. He was told that National Security probably would not provide coverage, because no policy had been issued. Vintson subsequently received a letter from National Security dated June 24, 1980, denying liability and refunding his premium. The reason given for the denial was that no policy had been issued and that the application for insurance clearly stated that the policy was to be effective as of the date of delivery.

Beginning September 20, 1982, the case was tried a second time before a jury. At the close of the plaintiffs’ presentation of evidence, the trial court took under advisement, and subsequently denied, defendants’ motion for directed verdict, which complied with the requirements of Aspinwall v. Gowens, 405 So.2d 134 (Ala.1983), infra, as to each count of the complaint. All counts were submitted to the jury, and the jury returned a general verdict in favor of plaintiffs. Judgment was entered on the verdict in the amount of $150,000.00. The defendants filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial or a remittitur. The motion was denied January 17, 1983.

The defendants, National Security and Feazell, raise the following issues on appeal:

(1) Whether the trial court erred in denying defendants’ motion for directed verdict as to Count II (fraud) and Count III (bad faith);

(2) Whether the general verdict based on self-contradictory theories of recovery is inconsistent as a matter of law;

(3) Whether there was evidence to support an award of punitive damages; and

(4) Whether defendants should have been granted a new trial based on improper closing arguments and a violation of a ruling on defendant’s motion in limine by plaintiffs’ counsel.

We first address the defendants’ claim that the trial court erred in denying their motion for directed verdict with regard to Counts II (fraud) and III (bad faith refusal to pay).

A directed verdict is proper only where there is a complete absence of proof on a material issue or where there are no disputed questions of fact on which reasonable people could differ. Ritch v. Waldrop, 428 So.2d 1 (Ala.1982). When a motion for directed verdict is requested, the entire evidence must be viewed in a light most favorable to the opposing party. Ott v. Fox, 362 So.2d 836 (Ala.1978).

Before we consider whether the denial of the directed verdict was proper under the specific facts of the present case, we look first at the evolution of the tort of bad faith refusal to pay a direct insurance claim in this state. This Court stated in Chavers v. National Security Fire & Casualty Co., 405 So.2d 1, 7 (Ala.1981):

“[A]n actionable tort arises for an insurer’s intentional refusal to settle a direct claim where there is either ‘(1) no lawful basis for the refusal coupled with actual knowledge of that fact or (2) intentional failure to determine whether or not there was any lawful basis for such refusal.’ ” (Emphasis added.)

Later, in National Security Fire & Casualty Co. v. Bowen, 417 So.2d 179, 183 (Ala.1982), we held:

“No lawful basis ‘means that the insurer lacks a legitimate or arguable reason for failing to pay the claim.’ Gulf Atlantic Life Ins. Co. v. Barnes, Ala., 405 So.2d 916 (1981). When a claim is ‘fairly debatable,’ the insurer is entitled to debate it, whether the debate concerns a matter of fact or law. Ibid.
“Under those authorities the plaintiff in a ‘bad faith refusal’ case has the burden of proving:
“(a) an insurance contract between the parties and a breach thereof by the defendant;
“(b) an intentional refusal to pay the insured’s claim;
“(c) the absence of any reasonably legitimate or arguable reason for that refusal (the absence of a debatable reason);
“(d) the insurer’s actual knowledge of the absence of any legitimate or arguable reason;
“(e) if the intentional failure to determine the existence of a lawful basis is relied upon, the plaintiff must prove the insurer’s intentional failure to determine whether there is a legitimate or arguable reason to refuse to pay the claim.
“In short, plaintiff must go beyond a mere showing of nonpayment and prove a bad faith nonpayment, a nonpayment without any reasonable ground for dispute. Or, stated differently, the plaintiff must show that the insurance company had no legal or factual defense to the insurance claim. [Emphasis in original.]
“The ‘debatable reason’ under (c) above means an arguable reason, one that is open to dispute or question. Webster’s Third New International Dictionary (1931) at 116. See Chavers at 10; see also Embry, J., concurring on rehearing in Aspinwall v. Gowens, Ala., 405 So.2d 134 (1981).”

More recently in National Savings Life Ins. Co. v. Dutton, 419 So.2d 1357 (Ala.1982), this Court emphasized the heavy burden that a plaintiff must bear in a bad faith case. Dutton, supra, held:

“In the normal case in order for a plaintiff to make out a prima facie case of bad faith refusal to pay an insurance claim, the proof offered must show that the plaintiff is entitled to a directed verdict on the contract claim and, thus, entitled to recover on the contract claim as a matter of law. Ordinarily, if the evidence produced by either side creates a fact issue with regard to the validity of the claim and, thus, the legitimacy of the denial thereof, the tort claim must fail and should not be submitted to the jury.” 419 So.2d at 1362.

Dutton also stated that “[w]hether an insurance company is justified in denying a claim under a policy must be judged by what was before it at the time the decision is made.”

Having set out the rules as they have progressed, we now apply these rules to the present case.

The following, as stated by this Court on the first appeal by National Security, clearly remains applicable in reviewing this case a second time:

“This case turns on whether or not the jury believes that Feazell, as agent for NSFC [National Security], represented to Vintson that he was covered from the time of the payment of the premium and whether Vintson relied on such representations. If the jury believes those facts, then NSFC is estopped to deny that Vint-son was covered under the policy. Fea-zell could also be guilty of misrepresentation. If the jury so finds, it could return a verdict based either on the contract or on the tort. If the jury does not believe that Feazell made the representations, then that precludes a finding of either a breach of contract or fraud.” 414 So.2d at 51-52.

There was conflicting testimony concerning the conversation between Vintson and Fea-zell regarding the time that the policy would take effect. When the case was before us on the first appeal, we held

“that in the narrow situation, such as the one in this case, where the plaintiff claims misrepresentation in the inception of the contract, i.e., where the agent misrepresents the moment in time that the policy will take effect, the plaintiff has the right to present his case to the jury under either a breach of contract theory or the tort of misrepresentation or both, because the same facts could support a finding that the contract did exist, even though the agent misrepresented the time of its inception.”

The circumstances have not changed with regard to this appeal other than the fact that at the second trial a claim for bad faith refusal to pay was submitted to the jury along with the contract and fraud claims.

It is clear from our holding following the first appeal of this case that plaintiffs would not be entitled to a directed verdict on the contract claim as a matter of law. Because we recognized that a jury question was presented regarding the claimed misrepresentations by the agent Feazell, a debatable reason existed for denying liability. The burden in this case was on the plaintiffs to show that National Security had no legal or factual defense to the insurance claim.

At the time National Security denied Vintson’s claim, it had before it the standard application for insurance, and evidence was presented at trial that until an application for insurance was favorably passed on by the company, and the policy was issued, and delivery was made to the insured, no policy of insurance was binding. This in itself satisfied the requirement of a debatable reason and was sufficient to prevent the submission of the bad faith issue to the jury. Further, because we find a jury question was presented on the contract claim, the trial court erred in allowing the bad faith count to reach the jury.

Vintson contends that National Security made no investigation of either the sale of the policy or the fire before denying liability on his claim. He argues that as a result a question of bad faith existed. We held in Dutton, however, and we find under the facts in this case, that the insurer had no affirmative duty to investigate further. National Security had a reasonable debatable basis, under the terms of the policy, for denying the claim; thus a tort action for bad faith refusal to pay was precluded. We conclude that the trial court erred when it refused to grant defendants’ directed verdict on the bad faith count.

We hold that the trial court was correct in denying defendants’ motion for directed verdict regarding the fraud count. As stated in our prior opinion in this case, and as discussed above, the evidence supported plaintiffs’ claim of Feazell’s misrepresentations to Vintson. Feazell testified that he was trying to sell a policy when he made the representations and that he was aware of company policies as to the time a policy was effective. All the evidence presented a question of fact for the jury, and a directed verdict would have been improper under the circumstances.

We conclude that the trial court was correct in allowing the jury to consider the evidence as it related to the claims of breach of contract and fraud. It erred, however, in denying National Security’s motion for directed verdict on the bad faith count. Because a general verdict was returned by the jury, this case must be reversed and remanded for a new trial. The recent case of John Deere Industrial Equipment Co. v. Keller, 431 So.2d 1155, 1157 (Ala.1983), states the rule with regard to the general verdict as follows:

“In Aspinwall v. Gowens, 405 So.2d 134, 138 (Ala.1981), the Court held:

“ ‘[I]f a complaint has more than one count and the defendant believes that the evidence is not sufficient to support one or more of those counts, he must challenge this by motion for directed verdict, specifying the count which is not supported by evidence and detailing with specificity the grounds upon which the particular count is not supported by the evidence. If this is not done and all counts go to the jury and a general verdict is returned, the court will presume that the verdict was returned on a valid count.’
“It follows from this holding that, if the defendant files a motion for directed verdict as to a count which is not supported by the evidence and the court denies such motion, a general jury verdict will not be presumed to have been returned on a count which is supported by the evidence _ We cannot presume that the general jury verdict relates to one of the counts which the evidence did support, where it is equally possible that it is based on the count which is unsupported by the evidence. Coffee County Bank v. Hughes, 423 So.2d 831 (Ala.1982). See, also, Estes v. Nix, 401 So.2d 62 (Ala.Civ.App.1981), writ denied, 401 So.2d 64 (Ala.1981)....”

For this reason, the judgment is hereby reversed and the cause remanded for a new trial.

REVERSED AND REMANDED.

All the Justices concur, except FAULKNER, J., who concurs in the result.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    Erline F. WORSHAM v. William G. FLETCHER, et al.
    82-410.
    Supreme Court of Alabama.
    July 13, 1984.

      Norman J. Gale, Jr. of Clay, Massey & Gale, Mobile, for appellant.
    Benjamen T. Rowe of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Mobile, for appellees.
   FAULKNER, Justice.

Erline Worsham brought this action against William Fletcher and Saunders Leasing Systems for injuries she received when an automobile driven by Fletcher collided with Worsham’s automobile. Following a trial on the merits, a jury returned a verdict for the defendants. Worsham appeals.

The collision occurred at the intersection of Interstate Highway 1-65 and Government Boulevard in Mobile County. The descriptions of the accident as given by both drivers were essentially the same. Both automobiles were on a service road and were attempting to merge with traffic on Government Boulevard. Worsham was immediately ahead of Fletcher. Both vehicles stopped as they approached the intersection. Worsham thought she saw an opening in the traffic and started out as if to attempt to enter the line of vehicles on Government Boulevard. As she started to move, Fletcher began moving and at the same time he looked to the left to check the oncoming traffic. Worsham changed her mind and decided not to enter the line of traffic at that time and stopped. Fletcher’s automobile collided with the rear end of Worsham’s automobile.

Worsham raises one issue on appeal: whether the trial court erred in refusing to allow the introduction of the investigating police officer’s report.

The appellant concedes that reports of investigating police officers are hearsay, and therefore are not ordinarily admissible. Nettles v. Bishop, 289 Ala. 100, 266 So.2d 260 (1972). She argues, however, that the report was admissible in this instance because it was a “past recollection recorded.” See Dennis v. Scarborough, 360 So.2d 278 (Ala.1978).

In order to lay a predicate for the admission of a document under the “past recollection recorded” rule, the witness must testify to the following:

“(1) That he personally observed the event or facts referred to in the writing and that the writing was made or seen by the witness either contemporaneously with the event or when his recollection of the event was fairly fresh.
“It is not essential, to benefit from past recollection recorded, that the witness himself shall have made the writing. The writing may have been made by another person if the witness saw it when the event recorded was fairly fresh in his memory and he then knew the statements in the writing to be correct.
“(2) That he then knew the contents of the writing and knew such contents to be true and correct.
“Where the witness testifies that the writing is in his own handwriting, he may testify further that he knows from his general practice in making writings of that kind that what he wrote was true.
“(3) That he has no present recollection of the event other than his testimony to the matters stated in 1 and 2 above.”

C. Gamble, McElroy’s Alabama Evidence, § 116.03 (3d ed. 1977).

In Dennis, supra, the appellant sought to introduce only that portion of the report which recited an admission against interest made to the investigating officer by an adverse party. 360 So.2d at 278. The adverse party’s admission was admissible as evidence of her negligence and the accident report containing the admission qualified under the “past recollection recorded” rule set out by Gamble, supra.

In the case at bar, the officer testified that at the time the writing was made he knew that the contents of the writing were true and correct and that he had no recollection at the time of trial of the events related in the report. The reason the report was inadmissible in this case was that the officer did not personally observe all of the events described in the report. That information in the report which was based on the officer’s own observations was admissible. The date of the report, the drawing depicting the positions of the vehicles at the time the officer observed them, the description of the intersection, and the description of the weather conditions were all things which the officer saw. Those portions of the report could have been admitted. In fact, the officer was allowed to testify without objection to those facts. The objections were made to those portions of the report which were based, in part, on the events which transpired before the officer arrived on the scene. The defendant properly objected to the portion of the report describing the accident. That description was based on what other people told the officer, not on what he saw. The report did not indicate that the statements made to the officer were attributable to the defendant. The defendant also objected to questioning as to the “contributing circumstances” entry on the report. It indicated that there was no improper driving on the plaintiff’s part and that the defendant was inattentive and following too closely. Again, those were not observations made by the officer. The plaintiff never argued that the officer was an expert who could testify to such opinions based on what he saw.

A writing which would otherwise be inadmissible hearsay may be admitted if it qualifies as a “past recollection recorded.” To fall within this exception, however, the statements in that writing must be statements which the witness would have been able to testify to if he had had a present recollection of the event at the time of the trial. In this case, the officer had no first hand knowledge of the accident and the plaintiff did not attempt to qualify him as an expert who could testify as to the cause of the collision. His hearsay statements on the report were not made admissible merely by putting them in writing, and nothing else appears in this case to make his hearsay admissible.

The trial court properly refused to allow the accident report into evidence.

AFFIRMED.

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


author: ALMON, Justice.

text:
    Willie J. SWAIN, et al. v. Cuviere TERRY.
    82-679.
    Supreme Court of Alabama.
    July 13, 1984.

      Martha A. Campbell, Birmingham, for appellants.

      Houston L. Brown and Robin L. Burrell, Birmingham, for appellee.
   ALMON, Justice.

This is an appeal from a judgment entered on a jury verdict which determined that a parol contract for the sale of certain realty situated in Talladega County, Alabama, complied with the Code 1975, § 8-9-2(5), exception to the Statute of Frauds.

On May 11, 1979, Cuviere Terry filed suit in circuit court against Willie J. Swain, Thomas Beavers, and certain fictitious parties. The complaint alleged that as of 1979, Swain was of sound mind, but that Swain had previously been an incompetent under the guardianship of attorney Ralph D. Gaines, Jr. Terry alleged that in 1978 Swain was the owner of certain property adjacent to Terry’s business and home in Talladega County, Alabama, which Terry wanted to purchase for the construction of a new home. According to Terry, he contacted Swain’s guardian concerning this purchase, and Gaines told Terry that he would execute a quit claim deed to Terry for $2,000.00 with the circuit court’s approval. Based upon this alleged representation, Terry began construction of a house on this property in August 1978. Terry alleged that Swain ratified this agreement on numerous occasions both before and after the construction began and both before and after Swain’s disabilities were removed.

According to Terry, in January 1979, Swain and Beavers, his son-in-law, erected a fence around this property and committed acts of waste on the property, thereby preventing completion of Terry’s improvements. Terry sought the following relief: 1) an order ejecting Swain and Beavers from the property and restraining them from committing acts of waste or interference with completion of his improvements on the property; 2) an order determining the legal owner and fair market value of the property; and 3) an order requiring Swain, if found to be the legal owner, to perform the contract entered into by his guardian during his incompetency or, alternatively, an order declaring that the legal owner of the property was unjustly enriched in a sum exceeding $75,000.00, the current value of Terry’s improvements.

In addition to this complaint, Terry filed a lis pendens notice wherein he asserted title to this property. The circuit court granted Terry temporary relief and enjoined the defendants from interfering with completion of Terry’s improvements on the property.

Swain filed an answer and counterclaim wherein he denied the existence or ratification of any such agreement to purchase this property and pleaded the Statute of Frauds as an affirmative defense to the enforcement of such an oral contract. Swain then counterclaimed for $250,000.00 in damages, stating that he was the owner in fee of such property and that Terry had been continuously trespassing thereon.

Terry amended his complaint by adding three additional counts. In Count Two, Terry alleged that on or about July 22, 1978, he and Swain entered into an oral agreement whereby Terry would take possession of this realty, deliver to Swain earnest money in the amount of $200.00, and pay the remainder of the purchase price upon delivery of a deed. Terry alleged that in reliance upon this agreement he paid the earnest money, took possession of the property, and spent $70,000.00 in making improvements thereon. Terry alleged that in September 1978, Swain breached this parol contract by refusing to execute a deed to Terry, despite Terry’s repeated attempts to tender the outstanding purchase price. Terry sought an injunction compelling Swain to convey the property to him.

The third count of Terry’s amended complaint alleged that Swain willfully, recklessly, or innocently misrepresented to Terry that either he or his guardian would convey the property to Terry in exchange for $2,200.00 if Terry made a $200.00 down payment. In reliance upon these misrepresentations, Terry alleged, he was damaged in excess of $70,200.00.

In the final count of Terry’s amended complaint, he alleged that although the pa-rol contract between himself and Swain might be unenforceable, Swain was unjustly enriched by the improvements which Terry made on the property. Terry sought injunctive relief against further acts of waste on the property, specific performance of the parol agreement, and $90,-000.00 compensatory and $100,000.00 punitive damages.

Swain answered the amended complaint and demanded a jury trial. Terry then amended his complaint again, adding Gloria Jean Swain and the Estate of Willie J. Swain as defendants, and including a fifth cause of action. In this count, Terry averred that Gloria Swain was the daughter of Willie J. Swain and that the Estate of Willie J. Swain was a guardianship pending in Talladega Circuit Court in which there was no final settlement as to the realty which Swain acquired during his guardianship and which Terry claimed under the parol contract. According to Terry, Swain and his guardian, Gaines, misrepresented to Terry that they would convey this property to Terry in accordance with the July 22, 1978, parol agreement. Moreover, Swain allegedly conveyed an undivided one-half interest in the property to Gloria on August 28, 1978. Terry sought an equitable estoppel against the defendants to preclude their benefiting from his improvements, and an equitable lien upon the property for the value of his improvements.

At a hearing, both sides agreed to an injunction prohibiting them from going on the property pending a final hearing. On May 30, 1980, the circuit court granted Terry’s motion for temporary restraining order and preliminary injunction to allow him to remain in possession of the property and to complete construction of the residence on this property.

On March 13, 1981, Terry filed an answer to Swain’s counterclaim and obtained default judgments against the Estate of Willie J. Swain and Gloria Jean Swain. Various appeals were taken, and both sides’ motions for summary judgment were denied.

In the jury trial which followed, Ray Robbins, the attorney in Gaines’s law firm who initiated the circuit court proceeding to convey the subject property, testified that Swain visited the law firm on several occasions to discuss this conveyance. In particular, Robbins testified that Swain and Terry had entered into an agreement to sell the realty, that Terry had paid Swain $200.00 as earnest money, and that Swain became angry when he realized that he could not obtain the remaining purchase price without court action. This testimony was allowed over the strenuous objections of Swain, who asserted the attorney-client privilege.

At the close of all the evidence, Swain unsuccessfully moved for a directed verdict. Upon deliberation, the jury found that Swain was, during the month of July 1978, mentally competent to contract for the sale of his property; that Swain received $200.00 from Terry as a down payment on the property; and that Swain put Terry in possession of the property.

The circuit court then entered judgment in favor of Terry, vesting complete title to the property in him, based upon the existence of an agreement between Terry and Swain to purchase this property, Terry’s payment of a portion of the purchase price, Swain’s act of placing Terry in possession of the property, and Terry’s payment of the remaining purchase price into court. In accordance with this judgment, the court register was ordered to pay Swain the $2,000.00, less costs, which Terry deposited with him in satisfaction of the outstanding purchase price.

The issues presented for review are 1) whether Swain’s post-judgment motion properly preserved alleged errors for appellate review; and, if so, 2) whether the circuit court erred in denying Swain’s motion for directed verdict which challenged the sufficiency of Terry’s evidence as to whether the alleged agreement between the parties complied with the Code 1975, § 8-9-2(5), exception to the Statute of Frauds; 3) whether the circuit court erred in denying Swain’s motion for directed verdict which challenged the sufficiency of the evidence as to Swain’s mental competence to contract during the relevant period; and 4) whether the circuit court erred in allowing the testimony of attorney Ray Robbins at trial despite Swain’s assertion of the attorney-client privilege.

Within 30 days after the entry of final judgment, Swain filed a motion denominated “Motion for New Trial or in the Alternative, for Reconsideration.” In this motion, Swain requested that the circuit court set aside the judgment rendered against him because, among other reasons, the court erred in denying his motion for directed verdict and because Terry failed to produce sufficient evidence of an oral contract for the conveyance of realty between himself and either Swain or Swain’s guardian which was outside the Statute of Frauds.

According to Terry, this motion contains numerous drafting errors which preclude our review of the substantive issues which swain raises on appeal.

' At the outset, Terry contends that Swain cannot raise on appeal any issue as to the sufficiency of the evidence, due to his failure to file a motion to set aside the jury’s verdict prior to the final judgment entry and his failure to file a post-judgment motion denominated “Motion for Judgment Notwithstanding the Verdict.” We disagree.

To test the sufficiency of the evidence on appeal, a party must have moved for a directed verdict at trial and must, not later than 30 days after entry of judgment, move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with its previous directed verdict motion. Rule 50(b), A.R.Civ.P.; Perdue v. Gates, 403 So.2d 165 (Ala.1981).

The argument based on Swain’s failure to denominate his post-judgment motion a “Motion for Judgment Notwithstanding the Verdict” is without merit. Although it is desirable to label pleadings and motions correctly, there is no penalty for mislabeling, where the body of the pleading or motion complies with the applicable procedural requirements. See Committee Comments, Rule 7, A.R.Civ.P.; Rule 8(c), A.R.Civ.P.; and Guaranty Funding Corp. v. Bolling, 288 Ala. 319, 260 So.2d 589 (1972). Swain’s post-judgment motion, which sought to set aside the judgment rendered against him and to have judgment entered in accordance with his motion for directed verdict, clearly satisfied the Rule 50(b), A.R.Civ.P., definition of a motion for judgment notwithstanding the verdict, despite its formal appellation.

As his second line of defense, Terry argues that even if Swain’s post-judgment motion can properly be characterized as a motion for judgment notwithstanding the verdict, Swain’s failure to include within this motion the specific grounds of incompetency and the admission of evidence vio-lative of the attorney-client privilege precludes our review of these issues.

Rule 7(b)(1), A.R.Civ.P., requires that all motions “shall state with particularity the grounds therefor .... ” Rule 50(a), A.R. Civ.P., requires that all motions for a directed verdict, which are incorporated by reference within a motion for judgment notwithstanding the verdict, “shall state the specific grounds therefor.” Because Swain failed to include within either his motion for directed verdict or his post-judgment motion the specific ground of incompetency, we cannot review this issue for the first time on appeal. We must therefore limit our review of the directed verdict issues to the sufficiency of the evidence as to a parol contract for the conveyance of realty outside the Statute of Frauds, as this issue was included as a specific ground within Swain’s post-judgment motion.

Formal exceptions to evidentiary rulings are, however, unnecessary; it is sufficient that a party object to the ruling and state its grounds therefor at the time the ruling is made. Rule 46,- A.R.Civ.P. Because Swain complied with these requirements, he clearly preserved for review the question of the admission of evidence violative of the attorney-client privilege.

The first issue presented for review is whether there was sufficient evidence of a parol contract for the conveyance of realty outside the Statute of Frauds.

Section 8 — 9—2(5), Code 1975, an exception to the Statute of Frauds, provides that a contract for the sale of lands, tenements, or hereditaments, or any interest therein, which ordinarily would have to be in writing and signed by the party to be charged therewith, need not be in writing if “the purchase money, or a portion thereof is paid and the purchaser is put in possession of the land by the seller.”

Swain argues that his motion for directed verdict should have been granted because Terry failed to offer any evidence that either Swain or his guardian placed Terry in possession of the realty in question. We disagree.

Terry clearly presented evidence at trial satisfying both the partial payment and the possession requirements of the Code 1975, § 8 — 9—2(5), exception to the Statute of Frauds.

Terry testified that in July 1978, he went to Swain’s house and offered Swain $2,000.00 for the purchase of certain property owned by Swain which was contiguous with Terry’s business. According to Terry, he paid Swain $200.00 as part of the purchase price and received a receipt from Swain, who instructed Terry to see his guardian about the necessary paperwork. Terry then met with Gaines, who informed him that the conveyance would be by quitclaim deed, and whose associate Robbins initiated the circuit court proceedings necessary to convey the property from Swain to Terry. According to Terry, Gaines told him that he could begin construction of his residence on the property at once, without awaiting the final decree. Terry then commenced the construction of his residence on the property.

Although this testimony was disputed by other evidence presented at trial, such a conflict in the testimony was clearly a question for the jury. Therefore, Swain’s directed verdict motion was properly overruled.

The final issue presented for review is whether the trial court erred in allowing the testimony of attorney Ray Robbins at trial despite Swain’s assertion of the attorney-client privilege.

In Alabama, the attorney-client privilege is statutorily defined as follows:

“No attorney or his clerk shall be competent or compelled to testify in any court in this state for or against the client as to any matter or thing, knowledge of which may have been acquired from the client, or as to advice or counsel to the client given by virtue of the relation as attorney or given by reason of anticipated employment as attorney unless called to testify by the client, but shall be competent to testify, for or against the client, as to any matter or thing the knowledge of which may have been acquired in any other manner.”

Code 1975, § 12-21-161.

The burden of showing the confidential character of a communication rests on the party objecting to the introduction-of the evidence. This party must establish the relationship of attorney and client as well as other facts demonstrating the claim of privileged information. See Harris v. State, 281 Ala. 622, 206 So.2d 868 (1968). The client must also show that the admission of this privileged information into evidence will be prejudicial to the client. See Rowland & Co. v. Plummer, 50 Ala. 182 (1874). Because, however, invocation of this privilege is solely the client’s prerogative, the privilege may be waived, either directly or constructively, by the client. See Rowland & Co., supra.

It is undisputed that attorney Ralph D. Gaines, Jr., was appointed guardian ad litem to represent and defend Swain in accordance with Code 1975, § 26-2-42(b). However, despite Gaines’s reluctance to testify at trial as to privileged information gained during the attorney-client relationship between himself and Swain, Swain failed to invoke the attorney-client privilege at any time during Gaines’s testimony.

The relationship between attorney Ray Robbins and Swain is, however, unclear. Terry argues that because the pleadings signify that Robbins represented only Gaines in his capacity as the guardian ad litem of Swain, Robbins was never the “attorney of record” for Swain, and Swain was therefore not justified in invoking the attorney-client privilege with regard to Robbins’s testimony.

The proper characterization of Robbins as either the attorney for Gaines or for Swain is unimportant in light of Swain’s failure to object to the testimony of his guardian concerning confidential information gained during the attorney-client relationship.

Swain’s election not to invoke the privilege with regard to his guardian’s testimony effectively opened the door to similar testimony from other members of Gaines’s law firm. We therefore hold that Swain’s actual waiver of the attorney-client privilege regarding the testimony of his guardian, Ralph Gaines, constituted a constructive waiver of any privilege which Swain might invoke concerning the testimony of Robbins, who was at that time a member of Gaines’s law firm. The trial court was therefore correct in overruling any objections to Robbins’s testimony based upon Swain’s assertion of the attorney-client privilege.

The judgment of the circuit court is affirmed.

AFFIRMED

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

      . The letters of guardianship over the estate of Willie J. Swain, which were issued to Ralph D. Gaines, Jr., on October 30, 1951, were formally revoked on November 13, 1978. On November 21, 1978, Swain was adjudicated to be of sound mind.

      . Swain not only failed to include the specific ground of incompetency in his post-judgment motion, but also failed to include this ground in his answer as a "matter constituting an avoidance or affirmative defense.” Rule 8(c), A.R. Civ.P.


text:
    Leslie R. LONGSHORE and HBC Investments v. The CITY OF HOOVER, etc., et al.
    82-728.
    Supreme Court of Alabama.
    July 13, 1984.

      Douglas Corretti of Corretti & Newsom, Birmingham, for appellants.
    Jack H. Harrison of Harrison & Jackson, Birmingham, for appellees.
   ALMON, Justice.

This is a zoning case. Plaintiffs, Leslie R. Longshore and HBC Investments, filed a complaint in circuit court seeking a judgment holding that the actions of the City of Hoover and its city council, in denying a petition to rezone Longshore’s property, were unconstitutional and invalid. After various proceedings, including a remand to the city council, the trial court denied relief.

Longshore owns, and HBC Investments has an option to purchase, a 1.3 acre parcel of real property located at the southwest corner of the intersection of Lorna Road and Woodmeadow Drive in the City of Hoover. Longshore and HBC (hereinafter Longshore) applied to the Hoover Planning and Zoning Commission for a change in the zoning classification of the property from R-l (single family residential) to C-P (preferred commercial). Longshore had plans to build an office building on the property.

The Commission denied the request on November 12, 1979. Longshore took his request to the city council, which held a public meeting on the question on February 4, 1980. A number of area residents were present and objected to the change. The request was tabled until March 17, when at another meeting of the city council there was more discussion and the council voted unanimously to deny the request. Long-shore filed his complaint in circuit court on May 8, 1980.

The complaint alleged, inter alia, that the city council’s refusal to rezone the property was arbitrary, capricious, and unlawful, had “no conceivable relationship to the health, safety, morals or general welfare of the City of Hoover, Alabama, or its inhabitants,” constituted “a taking of the plaintiffs’ property without due process of law,” and that the zoning ordinance “in its application to plaintiff’s [sic] property is, therefore, unconstitutional and confiscatory.” It also alleged that the proposed use of the property as an office building “will not unduly and unreasonably change the present pattern of the surrounding neighborhood, nor create undue traffic burden or hazard.”

Defendants, the City of Hoover and its mayor and council members, filed an answer denying the averments of the complaint and averring that the question of whether the property should be rezoned

“was one that was fairly debatable, consumed extensive hearings before the City of Hoover with numerous witnesses who testified in opposition [to] the said request, and [defendants] would show unto the Court that the City’s actions in connection therewith are legal in every way.”

The answer also stated that the testimony presented at the public hearings indicated that the rezoning “would, in fact, create a tremendous traffic burden and hazard.”

The court held a trial without a jury, after which it entered an interim decree on August 17, 1981. That decree noted that evidence was presented to the court which was not before the city council. The decree continued,

“The Court is of the opinion that, had this evidence been presented to the Defendant City, a different result might have obtained. For example, one of the Plaintiff’s expert witnesses testified that an authorization for access to Lorna Road to and from the subject property had been granted just a few days before the trial of this matter commenced. The traffic condition around the subject property was one of the significant issues before the City and before the Court. Because of these factors, the Court is of the opinion that the Defendant City should have an opportunity to reconsider the Plaintiffs application in light of the evidence presented at the trial of this cause which was not available to the Defendant City at the time it heard the Plaintiff’s request.”

The decree instructed the city council to elect whether to re-hear Longshore’s petition and stated that if the council did so elect, notice should go out to adjoining property owners and Longshore should present substantially the same evidence as he did at trial. The city council elected to re-hear the petition and did so at its meeting on November 3, 1981. At that meeting there was substantial testimony for and against the proposed rezoning. The council adopted an ordinance rezoning the property to R-4 (multi-family use).

Longshore filed an amended complaint on October 8, 1982, challenging the council’s decision to rezone the property to R-4. The city filed an answer to the amended complaint. Longshore then filed a second amended complaint, alleging that one of the council members who participated in the public hearing, Hank Blackmon, owned property near the subject property and was a leader of the opposition to the proposed rezoning. The city answered that Long-shore had made no objection to Blackmon’s participation.

The court entered a thorough and well-reasoned opinion, from which we quote at length:

“Lorna Road is a heavily traveled, high density city street running north and south through the City. In past years, it was U.S. Highway 31 prior to the highway being relocated to the west. Wood-meadow Drive is a neighborhood street that runs in a westerly direction from Lorna Road which then changes to Arnold Road and then continues westerly to U.S. Highway 31. Woodmeadow Drive, along the north side of the subject property, separates the subject property from the right-of-way of Interstate Highway 1-459 to the north. The paved portion of 1-459 is approximately 75 feet north of the subject property and is substantially lower in grade than the grade of Lorna Road and Woodmeadow Drive.
“1-459 appears to have been used by the City of Hoover as the boundary or buffer line between properties zoned commercial and Multi-Family to the north along Lorna Road and properties zoned Single Family and Multi-Family to the south along Lorna Road. The latter residential uses continue approximately one-half mile south of the subject property. At such point, commercial zoning begins and a little further to the south is a heavily developed regional mall.
“The property to the immediate west, south and east of the subject property, is zoned R-l Single Family District and R-4 Multi-Family District_ The dominant use of the properties south of the subject property to Highway 31 is MultiFamily.
“It is clear from the evidence presented at the first court hearing and from this hearing, the subject property had no reasonable, suitable or practical use for single family residence purposes. The property could only accommodate two or three residential lots and the property’s physical characteristic of being substantially lower than the adjoining roads reduced its economical usage for such purpose. Moreover, the disturbing and distracting effects of the interstate highway and Lorna Road would have made single family usage extremely undesirable to a prospective owner or purchaser.
“The same cannot be said or found in respect to a Multi-Family use for the property. Though the evidence shows that the adverse impact and effects of the adjoining road and highway continue to exist, this 'impact and effects can be lessened or reduced by knowledgeable location and alignment of a multi-family structure or structures. The higher density use would also make economically feasible topographical work to be done on the property to make it more desirable from a construction standpoint. It further should be noted that the evidence shows that a multi-family use of the property would not have as much of an adverse impact and effect on the surrounding residential properties in the Woodmeadow Subdivision as would a commercial use of the property for an office building.
“The Court further notes that the Plaintiffs’ expert witness, shown to be qualified as a professional land use planner, opined in his testimony at the first hearing that the most suitable use for the subject property was offices, commercial or multi-family. The witness’ testimony in the second hearing differed in the respect that it was then his opinion that the property had no practical or reasonable use for any kind of residential usage.
“[Discussing case authorities.]
“In addition to and also as a part of the Plaintiffs’ contentions that the action of the Hoover Council was arbitrary and capricious, the Plaintiffs contend that Hoover City Councilman Hank Blackmon was the owner of nearby property and headed the opposition at the first rezoning hearing in respect to the Plaintiffs’ application. Councilman Blackmon was thereafter elected to the Council of the City of Hoover, participated in the public hearing held at the time of the second rezoning hearing and then voted with the other Council members to rezone the Plaintiffs’ property to R-4 Multi-Family District. The Plaintiffs contend that Councilman Blackmon had such a conflict of interests that his participation infected the entire procedure and invalidated the Council action.
“The Court notes that there was no request by the Plaintiffs or any other person that Councilman Blackmon recuse himself from participating in the second rezoning hearing and subsequent vote though it appears his position on the Plaintiffs’ application was well known. It further appears that, though councilman Blackmon characterizes himself as living in the neighborhood of the subject property, presumably in the Woodmea-dow Estates Subdivision, the evidence does not show that he has any pecuniary interest in the outcome of the proposed change of zoning or that he would be financially affected in any manner by the final result. Blackmon’s special interest has been shown only to be that of a neighboring property owner who is opposed to the proposed change of zoning and was thereafter elected to the City Council.
“[Quoting and discussing 62 C.J.S., Municipal Corporations, § 402 (1949), and 101A C.J.S., Zoning & Land Planning, § 91a (1979).]
“In the circumstances here, Blackmon has not been shown to have a pecuniary or direct interest in the zoning question and his interest [has] been shown only to be that of one of the group or class of persons opposing the zoning change. It further appears that Blackmon’s vote was not decisive on the question but that he voted for the R-4 Multi-Family Zoning along with all other members of the Council voting.”

The court found that the decision of the city council to rezone to R-4 instead of to C-P involved “a fairly debatable question and was, therefore, not arbitrary and capricious,” and that Blackmon’s participation was not grounds to invalidate the zoning change. The court adjudged that the rezoning to R-4 “was a lawful and valid exercise of the authority of the said City Council,” and denied Longshore’s claims for relief. The court denied Longshore’s post-trial motion, and he appealed.

Zoning decisions are legislative in nature, and a court will not overturn a zoning ordinance unless it finds that the zoning authority has acted in an arbitrary and capricious manner. If a zoning question is fairly debatable, the decision of the zoning authority will not be disturbed. Woodard v. City of Decatur, 431 So.2d 1173 (Ala.1983); City of Gadsden v. Downs, 412 So.2d 267 (Ala.1982); Jefferson County v. O’Rorke, 394 So.2d 937 (Ala. 1981); Allen v. Axford, 285 Ala. 251, 231 So.2d 122 (1970).

Longshore argues that Jefferson County v. O’Rorke, supra, presents a strikingly similar factual situation in which this Court affirmed a finding by the trial court that the county commission’s refusal to rezone O’Rorke’s property was arbitrary and capricious. In that case, however, the trial court found from the evidence that the county commission’s refusal to rezone had the effect of “relegating the use of Appel-lees’ land ... to nothing more than a ‘buffer zone,’ in view of its surroundings.” Id., 394 So.2d at 940. The property was located at the intersection of Interstate Highway 1-459 and U.S. Highway 280, a principal north-south route; on the other side of each highway, major commercial development was either scheduled or in progress; and the only issue put forth as making the question fairly debatable was the uncertainty as to the details of the proposed onsite sewage disposal system.

In this ease, the evidence supports the trial court’s finding that Longshore’s property has a reasonable, suitable or practical use under a multi-family classification. The neighboring lots on both Lorna Road and Woodmeadow Drive are in use as single-family residences. Across Lorna Road is a church, and the commercial uses on the other side of 1-459 are much less intensive than the commercial uses involved in O’Rorke — Lorna Road just north of 1-459 has a skating rink, a post office, and a convenience store. 1-459 is 20 or 30 feet lower than Woodmeadow Drive, so the interference from it would be less than if it were at the same or a higher grade. Furthermore, a multi-family use is in accordance with existing development on Lorna Road south of 1-459; for example, there is an apartment complex a short distance to the south of the subject property.

Under the facts of record, we cannot say that the Hoover City Council acted arbitrarily and capriciously in changing the zoning classification of the subject property from R-l (single family) to R-4 (multifamily). The trial court did not err in upholding the council’s decision.

The quoted portions of the trial court’s opinion disposing of the allegations of conflict of interest on the part of Councilman Blackmon adequately answer Longshore’s contentions. The judgment is affirmed.

AFFIRMED.

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

      . We omit reference to HBC Investments as a plaintiff and appellant for convenience. The proceedings below often refer solely to Long-shore.


text:
    John D. CAMP v. GENERAL MOTORS CORPORATION.
    82-797.
    Supreme Court of Alabama.
    July 13, 1984.

      William W. Smith of Hogan, Smith & Alspaugh, Birmingham, for appellant.
    B. Lynn Enderby and Judith A. Zakens, General Motors Corp., Detroit, Mich., and Charles A. Stewart, Jr. and Frank E. Lank-ford, Jr. of Huie, Fernambucq & Stewart, Birmingham, for appellee.
   ALMON, Justice.

This is a products liability case brought under the Alabama Extended Manufacturer’s Liability Doctrine (AEMLD). John D. Camp appeals from the judgment in favor of General Motors Corporation (GM) and asserts as error the trial court’s refusal to excuse his expert witness from the rule requiring sequestration of witnesses.

Camp was injured when the automobile which he was driving, a 1978 Chevrolet Monza, left the road as a result of an alleged steering malfunction and struck a tree. Camp filed an AEMLD action against GM, the manufacturer; Colonial Chevrolet-Buick, Inc., the retailer; and six fictitious defendants. The complaint alleged that the defendants manufactured, assembled, furnished, sold, or supplied him with a motor vehicle with defective steering and that this defective condition caused all of his injuries and concomitant damages. Camp subsequently amended his complaint, striking the retailer as a party defendant and adding a second count which alleged that prior to his accident, GM had knowledge of a steering lock-up problem caused by the presence of foreign particles in car steering systems similar to that on Camp’s automobile, and that GM’s failure to recall his car to properly filter the steering system warranted the recovery of punitive damages.

In the jury trial which followed, the rule was invoked and Camp’s expert witness was not allowed to remain in the courtroom during the testimony of other witnesses. The rule, however, did not apply to the expert witness for GM, who was also a representative of that defendant and therefore was allowed to sit at the defendants’ table throughout the trial. After a jury verdict in favor of GM, Camp moved for a new trial on the ground that the trial court abused its discretion in failing to excuse Camp’s expert witness from the rule. The motion was denied, and this appeal ensued.

Camp seeks to have this Court adopt a sequestration rule that is essentially the same as Rule 615(3), Fed.R.Evid. Under the federal rule, “a person whose presence is shown by a party to be essential to the presentation of his cause” may be excused from the rule and allowed to sit at the counsel’s table throughout the trial. Camp argues that Alabama’s adoption of a similar position will not flout the policy considerations underlying the traditional rule, because expert witnesses, who normally testify to matters of opinion rather than of fact, will not be influenced by the factual accounts of other witnesses, whereas their assistance during the trial of highly sophisticated matters would prove invaluable to the presentation of a party’s case.

Excluding witnesses upon invocation of the rule, or excusing witnesses from the rule, is a matter left largely to the discretion of the trial judge. Ryan v. Couch, 66 Ala. 244 (1880). This decision will not be disturbed on appeal absent a gross abuse of discretion on the part of the trial judge. Nationwide Mut. Ins. Co. v. Smith, 280 Ala. 343, 194 So.2d 505 (1966).

After a careful review of the record, we cannot discern that the trial judge’s exercise of discretion constituted reversible error.

We would, however, respectfully admonish the trial bench that in some instances, where the case appears to be primarily a “battle of the experts,” it might very well be prudent to allow the plaintiffs expert witness to escape the rule where the defendant’s expert assumes the dual role of party representative.

The judgment of the circuit court is affirmed.

AFFIRMED.

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


text:
    HARTFORD ACCIDENT AND INDEMNITY COMPANY v. MORGAN COUNTY ASSOCIATION OF VOLUNTEER FIREFIGHTERS and Arleta H. Frerichs.
    82-1047.
    Supreme Court of Alabama.
    July 13, 1984.
    Nicholas B. Roth of Eyster, Key, Tubb, Weaver & Roth, Decatur, for appellant.
    Sherman B. Powell, Decatur, for appel-lees.
   FAULKNER, Justice.

Hartford Accident and Indemnity Company appeals from a final judgment entered in favor of plaintiff Arleta H. Frerichs, after an ore tenus non-jury hearing in an action to determine whether an insurance contract provided coverage for decedent’s injuries and death. We affirm.

The issue presented for our review is whether the findings of fact made by the trial court are so clearly and palpably wrong or without supporting evidence that they should not be sustained. Ford v. Alabama By-Products Corp., 392 So.2d 217 (Ala.1980).

Hartford Accident and Indemnity Company admits that it issued a policy of insurance to the Morgan County Association of Volunteer Firefighters, insuring the life of Elmer John Frerichs, a volunteer fireman, and providing for payment of medical expenses resulting from an accident. However, Hartford argues that the insurance policy did not insure the decedent against a fatal accident while going to or returning from regularly scheduled meetings of the fire department; that the language of the policy is clear and unambiguous; and therefore, that it is not necessary to construe the terms of the policy.

The policy defines the scope of coverage as follows:

“Definition of Injury And Scope of Coverage:
“The term ‘injury’ means bodily injury of a person resulting directly and independently of all other causes in loss from an accident which occurs while such person qualifies as an Insured Person and:
“(a) with respect to a Class 1 Insured Person defined above, is actually on duty and;
“(1) at a fire, going to or returning from a fire, at a fire drill, at a parade or at a test or trial of any firefighting apparatus; or
“(2) participating in, or attending as a volunteer member of the Organization, (but not as a paid driver or employee) any other regularly approved, supervised activity of the Organization; or
“(3) riding in or on Organization apparatus going to or returning from a fire drill, a parade, or a test or trial of any fire-fighting apparatus.”

On March 20, 1980, Frerichs was fatally injured while returning home from a regularly scheduled business meeting of the Oden Ridge Fire Department (a member of the plaintiff organization). This activity is addressed by paragraph (a)(2) in the above policy language. Hartford contends that traveling to or from the regularly scheduled activity of the organization is not an activity covered by the “participating in or attending” language of the noted paragraph. However, several members of'the Organization testified that a representative of the insurance company informed them that they would be covered under the defendant’s policy while going to or returning from. regularly scheduled activities of the organization. In addition, after Frerichs’s death the representative of the insurance company expressed some doubt as to the extent of coverage, because of the language of the policy.

Whether a contract is ambiguous is a question of law for the trial court. Mass Appraisal Services, Inc. v. Carmichael, 404 So.2d 666 (Ala.1981); Holt v. Davidson, 388 So.2d 548 (Ala.1980). The lower court could have found the contract to be ambiguous. More than one reasonable interpretation of the language of the policy is possible. The policy clearly covers members while on duty when returning from a fire; thus, it is difficult to conceive how members could not be on duty when returning from a scheduled meeting. The terms “participating or attending” can conceivably include driving to and returning from a meeting.

Once the court concludes the instrument is ambiguous or uncertain in any respect, determination of the true meaning of the contract is a question for the fact-finder, in this case the trial court. The surrounding circumstances, including the construction placed on the language by the parties, are taken into consideration in order to ascertain the intention of the parties. City of Montgomery v. Maull, 344 So.2d 492 (Ala.1977).

After reviewing the insurance policy and reviewing the record in its entirety, we hold that the trial court could have found the policy to be ambiguous and could have found supporting evidence indicating that the policy covers Frerichs’s injuries and death while returning from a business meeting. From testimony of the plaintiffs, it is apparent that members of the organization desired coverage while going to or from regularly scheduled meetings and expected that such coverage would be provided, since an agent for the defendant insurance company represented to the members that such activity would be covered. We find that the record of evidence amply supports the trial court’s findings. Accordingly, the judgment is affirmed.

AFFIRMED.

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


author: EMBRY, Justice.

text:
    J.C. McALEER, General Administrator for Mobile County, Alabama v. L.W. NOONAN, Judge of Probate of Mobile County, Alabama, and Murray G. Hill, Jr.
    82-1194.
    Supreme Court of Alabama.
    July 13, 1984.
    James A. Philips, Mobile, for appellant.
    Maury Friedlander of Marr & Friedlan-der, Mobile, for appellees.
   EMBRY, Justice.

This is an appeal from a judgment adverse to J.C. McAleer in a declaratory judgment action filed by L.W. Noonan in his official capacity as Judge of Probate of Mobile County.

The events which gave rise to filing of this action began when J.C. McAleer was elected, under provisions of Act No. 3 of the 1890-1891 General Assembly, to the office of General Administrator for Mobile County, defeating the incumbent, Murray G. Hill, Jr. After McAleer assumed office, a controversy arose between him and Hill regarding the latter’s right to continue administration of estates for which he had been appointed administrator while he held the office of General Administrator. Because of this controversy, Judge Noonan filed this action seeking a judgment:

“defining the rights, duties, status, authority and legal relations between these parties [McAleer and Hill] vis-a-vis all pending estates committed to the defendant Hill while acting in his capacity as General Administrator of Mobile County; and determining], if Hill remains as Administrator of those certain cases, whether he is properly bonded to the probate Court of Mobile County given the general style of bond as herein noted....”

After trial of the cause, the following was entered:

“THIS CAUSE having come on to be heard on the 6th day of July, 1983, the Court having heard testimony ore tenus, received various exhibits of the evidence, and heard arguments of counsel, and having taken the case under submission;
“Based upon pleadings, proof, and arguments in this cause, the Court makes the following ruling:
“1. The Court finds that the Plaintiff in this cause is entitled to a declaratory judgment. The Court further finds that the cross-claim by Defendant, J.C. McA-leer, is entitled to a declaratory judgment defining the rights, duties, status, authority and legal relations between the parties. Because of the ultimate findings of the Court, the Court determined that the cross-claim of Defendant, MURRAY G. HILL, JR., is moot.
“2. The Court finds that the statutes which create and affect the office of the General Administrator of Mobile County create an additional class of individuals who may be appointed as administrator of estates.
“3. The Court finds that letters of administration which were issued to MURRAY G. HILL, JR., as general Administrator of Mobile County, Alabama, were issued to MURRAY G. HILL, JR., the individual, and not to the office of General Administrator, and that consequently, the Court finds that MURRAY G. HILL, JR., is legally serving as administrator in those estates to which he was duly appointed, and subject to all of the statutes, laws, and rules regarding the administration of estates. Consequently, the Court finds that a newly elected General Administrator does not assume the administration of the estates previously committed to his predecessor in this instance, and that failure of a General Administrator to be re-elected is not synonymous with the cessation [of] his authority under Section 43-2-550, Code of Alabama 1975.
“4. The Court finds that MURRAY G. HILL, JR., is administrator of the respective estates to which he has been appointed administrator, serve[s] as administrator, subject to the statutes, laws, and rules of Court which may be appropriate, and any defalcation in his duties as such may be acted upon by Probate Judge in the Probate Court of Mobile County, Alabama, upon appropriate petition.
“5. The Court observes that to require the former General Administrator of Mobile county to resign in approximately 120 estates, and a successor be appointed, would be burdensome to the heirs at law, next of kin, legatees, creditors, or others interested in the estates, by additional costs and fees.
“6. The Court specifically does not preempt the duties, responsibilities, or prerogatives of the Probate Judge and the appointment of administrators in individual estates, nor the prerogatives of the Probate Judge to remove an administrator, upon proper proceedings being held, under such procedures as may be established by law.
“Based upon the above findings of the Court, it is ORDERED by the Court that with reference to letters of administration issued to MURRAY G. HILL, JR., who was formerly General Administrator of Mobile County, Alabama, during his term [of] office, that he is entitled to continue to serve as administrator of those estates, the letters of administration having been issued to him as an individual, and not to this office.
“The costs of this proceeding having been prepaid, no Order is issued with reference thereto.”

Careful review of the record, applicable statutes, and the evidence, and reference to the judgment, compel us to conclude that the judgment is amply supported in fact and law and therefore due to be affirmed.

AFFIRMED.

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


text:
    Charles M. DICKSON, Jr. v. U-J CHEVROLET COMPANY, INC., a corp.
    82-1298.
    Supreme Court of Alabama.
    July 13, 1984.
    John M. Tyson, Jr. of Tyson & Tyson, Mobile, for appellant.
    Alex T. Howard, Jr., Richard T. Dorman, and Robin S. Brigham of Johnstone, Adams, May, Howard & Hill, Mobile, for ap-pellee.
   FAULKNER, Justice.

Charles M. Dickson, Jr., appeals from a final judgment in favor of the defendant, U-J Chevrolet Company, entered after an ore terms non-jury hearing in an action for revocation of acceptance under the Uniform Commercial Code. We affirm.

The trial judge, Robert L. Byrd, Jr., stated the facts as follows in his order:

“Mr. Dickson purchased a 1980 Chevrolet dump truck from U.J. Chevrolet on December 31, 1980. The sales price for the dump truck was $39,849.91. Dickson accepted delivery of the truck on January 6, 1981.
“Within one week after accepting delivery of the truck, Mr. Dickson brought the vehicle to the U.J. Service Department and complained that the dump body on the truck was leaning to the right. The dump body on the 1980 truck is supported by a tandem spring assembly with a total 38,000 pound capacity. U.J. personnel determined that the spring on the right side had a 17,000 pound capacity and the spring on the left had a 19,000 pound limit. U.J. personnel ordered a new right side spring assembly direct from the Chevrolet Motor Division factory in Flint, Michigan, on January 14, 1981.
“Despite the slight differentiation in the springs, Mr. Dickson used the truck in his dirt-hauling business and operated it while new spring parts were on order. The truck was driven 855 miles by Mr. Dickson while it was in his possession during a two week period of time after it was delivered to him on January 6, 1981. The truck was not dangerous to operate with the minor difference in the springs and the Court finds that there is no compelling reason that the dump truck could not have been used by Mr. Dickson in the condition it was originally delivered.
“Mr. Dickson’s attorney sent a letter to U.J. dated January 26, 1981 wherein Mr. Dickson attempted to reject or revoke acceptance of the 1980 dump truck, demanded a refund of the value paid, and demanded reimbursement of other incidental costs. Mr. Dickson returned the dump truck to the dealer by January 26, 1981.
“In an effort to correct the existing spring problem as quickly as possible, on January 20, 1981, U.J. purchased a spring from a local company and installed it on the truck. This spring did not obviate the problem, and U.J. so advised Mr. Dickson, stating that it would still be necessary to install the spring ordered from the factory.
“The spring parts that had been ordered from the Chevrolet factory on January 14, 1981 were received at the U.J. dealership on or around January 27, 1981. The parts were installed on the vehicle and the minor defect in the spring was fully corrected by or on about January 27, 1981. The replacement of the spring assembly was an uncomplicated job that took approximately one-half day to complete. The value of the repair was $606.00, of which amount $485.00 was attributable to the parts expense. The court finds that the cost of the replacement of the spring was nominal or de minimis in comparison to the $39,849.91 value of the dump truck.
“After the repairs on the spring assembly were successfully completed by U.J., Mr. Dickson refused to retake possession of the truck.
“The dump truck was driven on several different occasions during the spring of 1981 by U.J. personnel after the spring assembly was replaced. On each of these occasions the vehicle was found to be in excellent operating condition. The truck was ultimately sold to another purchaser in February of 1982, who used the dump truck in his dirt hauling business for 14 months and has not experienced any service problems with the spring assembly.
“The Court finds that Mr. Dickson did not reject delivery of the 1980 truck but accepted delivery on January 6, 1981 and acceptance was made on the reasonable assumption that the minor non-conformity in the spring assembly would be seasonably cured after the required parts arrived from the Chevrolet factory. The Court finds that Mr. Dickson failed to prove that the value of the truck was substantially impaired by any defects in its condition. Ala. Code, § 7-2-608(1) (1975). The Court also finds that U.J. was not given an appropriate opportunity to cure the minor defect in the spring assembly prior to the time Mr. Dickson attempted to revoke acceptance of the truck, and that U.J. seasonably and timely cured the defect.”

The issue presented for our review is whether the trial court’s findings of fact are so clearly and palpably wrong or without supporting evidence that they should be reversed. Silverman v. Charmac, Inc., 414 So.2d 892, 894 (Ala.1982).

The trial court properly found acceptance of the truck by Dickson. Under § 7-2-606, Code of Alabama 1975, acceptance occurs when the buyer:

“(a) After a reasonable opportunity to inspect the goods, signifies to the seller that the goods are conforming or that he will take or retain them in spite of their nonconformity; or
“(b) Fails to make an effective rejection (subsection (1) of Section 7-2-602), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or
“(e) Does any act inconsistent with the seller’s ownership; but if such act is wrongful as against the seller it is an acceptance only if ratified by him.”

The evidence shows that Dickson used the truck in January 1981, and that he put over 800 miles on the truck. In fact, Dickson continued to use the truck while waiting for. the new spring assembly to arrive. Thus, acceptance of the truck by Dickson was clearly shown. Rozmus v. Thompson Lincoln-Mercury Co., 209 Pa.Super. 120, 224 A.2d 782 (1966); Woods v. Van Wallis Trailer Sales Co., 77 N.M. 121, 419 P.2d 964 (1967).

Because the trial court found that Dickson accepted, rather than rejected, the truck, he must meet the requirements of § 7-2-608, Code of Alabama 1975, regarding revocation of the acceptance, if he is to recover. That section provides:

“(1) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it:
“(a) On the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or
“(b) Without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.
“(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.
“(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.”

(Emphasis added.)

Thus, in order to revoke, Dickson must show that the nonconformity is a substantial impairment of the value of the truck. Furthermore, the seller has the right to seasonably cure the nonconformity if the buyer accepted it on the reasonable assumption that the nonconformity would be cured. Tiger Motor Company v. McMurtry, 284 Ala. 283, 224 So.2d 638 (1969).

Whether there is substantial impairment of value is a question for the trier of fact. Shelton v. Duncan, 385 So.2d 1329 (Ala.Civ.App.1980). The trial court properly considered the cost and extensiveness of the repairs, the actual use and ability to use the truck, and the success of the repair in finding that there was no substantial impairment of the value of the dump truck. Fargo Machine & Tool Co. v. Kearney and Trecker Corp., 428 F.Supp. 364 (E.D. Mich.1977); McGilbray v. Schofield Winnebago, Inc., 221 Kan. 605, 561 P.2d 832 (1977); Keen v. Modern Trailer Sales, Inc., 40 Colo.App. 527, 578 P.2d 668 (1978).

The evidence showed that the cost of replacing the spring was $606.00. This expense was nominal or de minimis in view of the $39,849 value of the dump truck. The evidence also showed that the replacement was a basic, uncomplicated repair that required less than one half day's labor to accomplish.

Despite the defect, Mr. Dickson used the vehicle in his dirt hauling business prior to the time he returned the truck for repair on January 21, 1981. Thus, the defect did not prevent the operation of the truck.

The evidence further reflected that the truck was subsequently sold and used by another buyer in his dirt hauling business after the repairs were completed. Based upon the above factors, the trial court could find that there was no substantial impairment of value.

Section 7-2-608(l)(a), Code of Alabama 1975, addresses the seller’s right to cure. This- provision, in essence, states that a buyer “may revoke his acceptance ... if he has accepted it ... [o]n the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured.”

U-J Chevrolet cured the defect shortly after the requisite parts were obtained from the General Motors factory. This court in Tiger Motor Company v. McMurtry, 284 Ala. 283, 224 So.2d 638 (1969), recognized that “under the terms of the Uniform Commercial Code, the seller-has the right to attempt to 'cure' any defects in the goods.” U-J was notified of the defect on January 9, 1981, and by January 27, 1981, the defect was cured. Under the circumstances of this case, it cannot be disputed that U-J cured the nonconformity in the truck in such a manner and time as to prevent revocation of acceptance.

After reviewing the record in its entirety, we find that the evidence amply supports the trial court’s finding that Dickson accepted the truck and did not properly revoke his acceptance.

Further, Dickson’s claim for consequential damages in the form of loss of business was inappropriate as a matter of law and was properly dismissed by the trial court. The damages sought by Dickson are only available when the buyer rightfully rejects, or revokes acceptance, which was not done here. Cf., § 7-2-711, Code of Alabama 1975. Accordingly, the judgment is affirmed.

AFFIRMED.

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


text:
    Johann KUCIK, et al. v. OPELIKA CITY BOARD OF EDUCATION, et al.
    83-52.
    Supreme Court of Alabama.
    July 13, 1984.

      J. Victor Price, Jr., Montgomery, for appellants.
    Vaughan H. Robison of Robison & Bel-ser, Montgomery, for appellees.
   ALMON, Justice.

This is an appeal from a summary judgment in favor of a city board of education and its members in an action wherein several non-tenured teachers, whose contracts of employment were not renewed, sought reinstatement and back pay.

Johann Kucik, Willie Pollard, Larry W. Davis, and Carol Williams were teachers who, as of May 1982, had been employed in the Opelika city school system for three consecutive years.

On May 31, 1982, a majority of the members of the Opelika City Board of Education (the Board) met in executive session and unanimously voted to accept the recommendations of the superintendent not to renew the employment contracts of these teachers. The Board then gave written notice of this decision to each of the teachers prior to the last day of the 1981-82 school year, in accordance with Code 1975, § 16-24-12. On June 6, 1982, the Board again met in executive session and passed a motion reaffirming the personnel decisions made on May 31, 1982.

On October 6, 1982, Kucik, Pollard, Davis, and Williams filed a complaint in Lee Circuit Court against the Board; Clyde Zeanah, sued individually and in his official capacity as Superintendent of the Board; and Winston T. Smith, Jr., Tom Botsford, William Harper, Jr., W. F. Horsley, and Jane Walker, members of the Board sued in their official and representative capacities.

The complaint alleged that the plaintiffs had been employed by the Board for four consecutive years and therefore enjoyed continuing service status under Code 1975, § 16-24-2. The complaint then alleged that the defendants violated the express provisions of the Teacher Tenure Act, Code 1975, § 16-24-1, et seq., by terminating the plaintiffs’ employment without 1) the recommendation of the superintendent, 2) a majority vote of the Board members, 3) the recordation of the minutes of the meeting wherein their employment was terminated, and 4) a hearing wherein the plaintiffs could challenge this termination decision.

The complaint also alleged federal and state constitutional violations and sought the following relief: 1) a judgment declaring the plaintiffs to be teachers with continuing service status under the Alabama Teacher Tenure Act; 2) injunctive relief requiring the defendants to disavow their termination decision and to acknowledge the plaintiffs’ continuing service status; and 3) an order reinstating the plaintiffs with full back pay.

The plaintiffs moved for summary judgment and attached the depositions of several Board members in support of their motion. These depositions stated that the plaintiffs had been employed by the Board for only three consecutive years and were, therefore, non-tenured at the time of the decision not to renew their employment contracts. According to the Board members, this decision was not based on any personal or political reasons but rather on the recommendations of the superintendent and the principals involved.

The defendants also moved for summary judgment and included these same depositions and other affidavits in support of their position. The circuit court entered an order granting the defendants’ motion for summary judgment, and the plaintiffs filed a notice of appeal to this Court.

On appeal, the plaintiffs do not dispute the fact that, although their complaint states otherwise, they had been employed by the Board for only three consecutive years at the time of the termination decision and were therefore non-tenured teachers under Code 1975, § 16-24-2.

As their sole assertion of error, the plaintiffs contend that because the decision to terminate their employment contracts occurred during meetings which allegedly violated the “sunshine law,” Code 1975, § 13A-14-2, they are entitled to reinstatement and the recovery of full back pay.

We have reviewed the entire record and find absolutely no mention of the “sunshine law,” Code 1975, § 13A-14-2; nor is there any allegation in the unamended complaint to suggest that the action taken by the Board was void because of the “sunshine law.” This Court will not address issues unsupported by the record. Chatman v. City of Prichard, 431 So.2d 532 (Ala.1983).

We note, however, that this Court has refused to invalidate decisions rendered during meetings which violated the “sunshine law,” Code 1975, § 13A-14-2 (formerly codified at Code 1975, § 13-5-1). See Ex parte Alabama Pub. Serv. Comm’n, 376 So.2d 665 (Ala.1979); Hargett v. Franklin County Bd. of Educ., 374 So.2d 1352 (Ala.1979). See also Miglionico v. Birmingham News Co., 378 So.2d 677 (Ala.1979).

The judgment of the circuit court is affirmed.

AFFIRMED.

JONES, FAULKNER, and EMBRY, JJ., concur.

ADAMS, J., concurs in the result.

      . This statute provides:
      “Any teacher in the public schools who shall meet the following requirements shall attain continuing service status: Such teacher shall have served under contract as a teacher in the same county or city school system for three consecutive school years and shall thereafter be reemployed in such county or city school system the succeeding school year.”
      Code 1975, § 16-24-2(a).

      . The "sunshine law,” Code 1975, § 13A-14-2, provides:
      "(a) No executive or secret session shall be held by any of the following named boards, commissions or courts of Alabama, namely: Alabama public service commission; school commissions of Alabama; board of adjustment; state or county tax commissions; any county commission, any city commission or municipal council; or any other body, board or commission in the state charged with the duty of disbursing any funds belonging to the state, county or municipality, or board, body or commission to which is delegated any legislative or judicial function; except, that executive or secret sessions may be held by any of the above named boards or commissions when the character or good name of a woman or man is involved.
      “(b) Any person or persons violating any of the provisions of this section shall be guilty of a misdemeanor, and, upon conviction, shall be fined not less than $10.00 nor more than $500.00. Any person who remains in attendance upon any meeting of any of the above named boards or bodies which is being held in secret or executive session shall be deemed guilty of violating the provisions of this section.”


text:
    John JENKINS v. AMERICAN CAST IRON PIPE CO.
    83-115.
    Supreme Court of Alabama.
    July 13, 1984.

      Ralph E. Coleman and Allan Werner of Coleman & Coleman, Birmingham, for appellant.
    Robert G. Tate and F.A. Flowers III of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, for appellee.
   ALMON, Justice.

This is an appeal from a denial of a Rule 60(b), A.R.Civ.P., motion to set aside a judgment. Plaintiff had failed to attend two depositions called by defendant, and then failed to attend a hearing on defendant’s motion for sanctions. After that hearing, the court dismissed the action and taxed costs against plaintiff.

John Jenkins filed this defamation action against American Cast Iron Pipe Company (ACIPCO) on September 2, 1981. ACIPCO filed an answer on September 18, denying the allegations of the complaint, and an amended answer on December 28, raising the defenses of lack of publication, truth, and privilege.

On February 9, 1982, ACIPCO filed and served on Jenkins’s attorney notice that it would take Jenkins’s deposition at ACIP-CO’s attorney’s office on March 5, 1982. Jenkins and his attorney failed to appear for the deposition. On March 11, ACIP-CO’s attorney sent a letter to Jenkins’s attorney to “confirm our telephone conversation that I will take the plaintiff’s deposition in the above-styled action on March 26, 1982 at 9:00 a.m. in our offices.” Jenkins again failed to attend, though it appears that he was at his attorney’s office waiting to go to the deposition when ACIPCO’s attorney telephoned Jenkins’s attorney's office.

ACIPCO filed a motion for sanctions on the following Monday, March 29, requesting the court to dismiss the action, or in the alternative, to require Jenkins to pay ACIPCO’s attorney’s fees incurred in connection with the depositions. The motion was set for hearing on April 14,1982, and a copy of it was served on Jenkins’s attorney. Neither Jenkins nor his attorney attended the hearing on April 14, and the court dismissed the action on that date.

On August 10, 1983, Jenkins, through a different attorney, filed a Rule 60(b) motion to set asid.e the judgment of dismissal. The motion averred that Jenkins’s previous attorney had advised him that the deposition had been continued, and that, although Jenkins had stayed in touch with his attorney, he had not been informed of the dismissal, only learning of it approximately thirty days before filing the Rule 60(b) motion.

ACIPCO’s response stated, inter alia, that Jenkins’s first attorney had telephoned ACIPGO’s attorney after the dismissal and stated that he would file a motion to set aside the dismissal. This response included as an exhibit a letter, dated April 15, 1982, from ACIPCO’s attorney to an officer of ACIPCO informing him of the telephone call from Jenkins’s attorney. ACIPCO’s response argued at length as to why Jenkins was not entitled to relief under Rule 60(b). The trial court agreed, denying the motion on September 8,1983. Jenkins filed notice of appeal to this Court.

ACIPCO correctly points out that relief is not available to Jenkins under Rule 60(b)(1) for “mistake, inadvertence, surprise, or excusable neglect,” because motions under this provision, under the terms of the rule itself, must be made within four months after judgment. Ex parte Hartford Ins. Co., 394 So.2d 933 (Ala.1981).

Jenkins raises none of the grounds set out in subdivisions (2)-(5) of Rule 60(b), so the only remaining ground on which the trial court’s judgment could be reversed is that of subdivision (6): “any other reason justifying relief from the operation of the judgment.” Relief under this subdivision “is reserved for extraordinary circumstances, and is available only in eases of extreme hardship or injustice.” Howell v. D.H. Holmes, Ltd., 420 So.2d 26, 28 (Ala.1982); City of Birmingham v. City of Fairfield, 396 So.2d 692 (Ala.1981). Furthermore, broad discretion is accorded trial courts in ruling on 60(b) motions. Ex parte Hartford Ins. Co., supra; Textron, Inc. v. Whitfield, 380 So.2d 259 (Ala.1979).

The trial court’s order in this case is supported not only by Jenkins’s failure to appear at the depositions or the hearing on the motion for sanctions, but also by the long delay in filing the motion for relief from judgment. Jenkins argues that he received no notice of the hearing, but the motion for sanctions, which included notice of the April 14 hearing, was served on Jenkins’s attorney, as required under Rule 5(b), A.R.Civ.P. The failure of Jenkins to more actively prosecute his action precludes us from finding the existence of “extreme hardship or injustice” which would require a reversal of the trial court.

Jenkins further claims that his delay in filing the 60(b) motion was due to the fact that his attorney did not inform him of the dismissal. This cannot serve as a ground for a 60(b)(6) motion, however, because the “[ojmissions and commissions of an attorney are to be regarded as the act of the client whom he represents.” Arkel Land Co. v. Cagle, 445 So.2d 858, 862 (Ala.1983), quoting Nelson v. Darling Shop of Birmingham, Inc., 275 Ala. 598, 604, 157 So.2d 23 (1963). Moreover, “[a] party remains under a duty to' take legal steps to protect his own interests.” City of Daphne v. Caffey, 410 So.2d 8, 10 (Ala.1981), quoting Wright and Miller, Federal Practice and Procedure, § 2864 at 214-215.

The trial court committed no abuse of discretion in denying Jenkins’s motion to set aside the judgment of dismissal. The judgment is affirmed.

AFFIRMED.

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


text:
    William E. SMITH v. LIBERTY MUTUAL INSURANCE COMPANY, et al.
    83-137.
    Supreme Court of Alabama.
    July 13, 1984.
    Charles F. Carr of Rives & Peterson, Birmingham, for appellant.
    Lyman H. Harris and Deborah S. Braden of Lorant, Harris & Yearout, Birmingham, for appellees.
   FAULKNER, Justice.

Plaintiff was injured on April 30, 1981, while employed by Lanson Industries, Inc. He filed a complaint on July 6, 1983, alleging, inter alia, that Liberty Mutual, Lan-son’s workmen’s compensation carrier, had inspected the worksite prior to the date of the injury and that, as a proximate consequence of Liberty Mutual’s negligent failure to discover the dangerous condition in question, plaintiff was injured. Liberty Mutual was granted summary judgment and the plaintiff, William E. Smith, appeals.

The only issue involved in this case is whether the plaintiff’s action against Liberty Mutual is governed by the one-year statute of limitations governing negligence actions, § 6-2-39(a)(5), Code of Alabama 1975, or by the six-year statute of limitations governing contract actions, § 6-2-34(4).

Plaintiff’s theory of the case is that he is a third-party beneficiary under the workmen’s compensation policy and that the negligent inspection was performed pursuant to the contract. He argues, therefore, that the contract statute of limitations is applicable. See Holley v. St. Paul Fire & Marine Insurance Co., 396 So.2d 75 (Ala.1981).

The question of which limitations period to apply is dependent on whether the duty which was allegedly breached was one imposed by law or by contract. The applicable contractual provision reads:

“INSPECTION AND AUDIT. The company and any rating authority having jurisdiction by law shall each be permitted but not obligated to inspect at any reasonable time the workplaces, operations, machinery and equipment covered by this policy. Neither the right to make inspections nor the making thereof nor any report thereon shall constitute an undertaking on behalf of or for the benefit of the insured or others, to determine or warrant that such workplaces, operations, machinery or equipment are safe or healthful, or are in compliance with any law, rule or regulation.”

In a case decided during the pendency of this appeal, Bailey v. Liberty Mutual Insurance Co., 451 So.2d 279 (Ala.1984), we ruled that an identical provision in another of Liberty Mutual’s workmen’s compensation policies did not create a duty to inspect the premises and, therefore, that any action for negligent inspection would be ex delicto rather than ex contractu:

“The terms of this provision of the insurance contract are unambiguous. There is no express agreement by Liberty Mutual to inspect Benham’s equipment or premises, and to construe this provision of the policy as creating an implied warranty would be inconsistent with the express provisions of the contract.”

Bailey v. Liberty Mutual Ins. Co., supra.

The decision of the trial court is hereby affirmed.

AFFIRMED.

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


author: PER CURIAM.

text:
    Brenda Jo HUTT, a minor suing Through her next friend & father, Robert HUTT v. ETOWAH COUNTY BOARD OF EDUCATION.
    83-167.
    Supreme Court of Alabama.
    July 13, 1984.
    R. Ben Hogan III of Hogan, Smith & Alspaugh, Birmingham, and Robert H. King, Gadsden, for appellant.
    Thomas E. Davis of Burns, Shumaker & Davis, Gadsden, for appellee.
   PER CURIAM.

Brenda Jo Hutt, a minor, suing through her next friend and father, Robert Hutt, filed a complaint against the Etowah County Board of Education for failure to furnish safe gymnasium facilities at Hokes Bluff High School. She alleged that she was injured on April 9, 1981, during a basketball activity in the gymnasium when her hand struck glass windows in a door located in close proximity to the edge of the basketball court, shattering the glass upon impact.

The Circuit Court of Etowah County granted the board’s motion for summary judgment on the negligence counts of Hutt’s complaint on the authority of Sims v. Etowah County Board of Education, 337 So.2d 1310 (Ala.1976). Hutt appeals from that ruling.

Hutt asks us to re-examine our prior decisions holding that county boards of education are not subject to tort actions, due to sovereign immunity. E.g., Sims v. Etowah County Board of Education, supra; Turk v. County Board of Education of Monroe County, 222 Ala. 177, 131 So. 436 (1930). For the reasons that follow, we decline to depart from the precedent set forth in those earlier decisions.

On numerous occasions, this court has stated that boards of education, both county and municipal, are independent agencies of the state. Enterprise City Board of Education v. Miller, 348 So.2d 782, 783 (Ala.1977); Sims v. Etowah County Board of Education, 337 So.2d at 1315, quoting Turk v. County Board of Education, 222 Ala. 177, 131 So. 436, 437 (1930); Greeson Mfg. Co. v. County Board of Education, 217 Ala. 565, 117 So. 163 (1928). Nevertheless, Hutt argues that “a county school board, like a county commission, is nothing more than an involuntary political subdivision of a county,” and, therefore, subject to suits in tort for reasons similar to those enumerated by this court for tort liability on the part of a county commission. See Cook v. County of St. Clair, 384 So.2d 1 (Ala.1980). We disagree.

County boards of education are not agencies of the counties, but local agencies of the state, charged by the legislature with the task of supervising public education within the counties. See §§ 16-8-8 -9, Code 1975; Clark v. Jefferson County Board of Education, 410 So.2d 23, 27 (Ala.1982). They execute a state function — not a county function — namely, education. Sims v. Etowah County Board of Education, 337 So.2d at 1317 (Faulkner, J., dissenting), citing Alabama Constitution, Art. 13, § 256. Therefore, they partake of the state’s immunity from suit to the extent that the legislature authorizes. Sims v. Etowah County Board of Education, 337 So.2d at 1316; Enterprise City Board of Education, 348 So.2d at 783.

In numerous cases involving governmental entities, including county boards of education, this court has held that “may be sued” language in the applicable statute is essential to a finding that suits against the entities are authorized. Cook v. County of St. Clair, supra (counties); Board of School Commissioners of Mobile County v. Cavers, 355 So.2d 712 (Ala.1978) (county boards of education); Enterprise City Board of Education v. Miller, supra (municipal boards of education); Sims v. Etowah County Board of Education, supra (county boards of education); Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So.2d 631 (1975) (county hospital boards); Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975) (municipalities). Hutt argues that this rule should no longer be applied to county boards of education because the legislature, by prescribing the limits of liability in tort cases for government entities, including county public school boards, Act 673, § 1, page 1161, Vol. 2, Acts of Alabama 1977, has indicated that such boards are not immune from suit in tort. We think this interpretation of the statute wilts in light of the legislature’s statement that the limits should be applied to school boards only “when such boards do not operate as functions of the State of Alabama.” Id.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

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

FAULKNER, J., dissents.

TORBERT, C.J., not sitting.

      . The trial court also granted the board's motion for summary judgment on the counts of Hutt's complaint that sound in implied contract, on the authority of Brown v. Calhoun County Board of Education, 432 So.2d 1230 (Ala.1982). Hutt does not challenge that ruling in this appeal.

      . Likewise, municipal boards of education are not agencies of municipalities, but agencies of the state, "empowered to administer public education within the cities.” Enterprise City Board of Education v. Miller, 348 So.2d at 783, 784. Therefore, they enjoy immunity from tort liability, id., though municipalities enjoy no such immunity. Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975). (In Enterprise City Board of Education v. Miller, this court clearly stated that its holding there was not at variance with Jackson v. City of Florence. Similarly, our holding in this case does not conflict with Cook v. County of St. Clair.)